http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  443 of 2004

PETITIONER: U.P. State Bridge  Corporation Ltd. & Ors.

RESPONDENT: U.P.  Rajya  Setu  Nigam S.Karamchari  Sangh     

DATE OF JUDGMENT: 13/02/2004

BENCH: Ruma Pal & B.P. Singh.

JUDGMENT: J U D G M E N T

with Civil Appeal No 442/2004

RUMA PAL, J.

       The appellant is a Government company                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             within the meaning of Section 617 of the Companies Act.  It  carries on construction activities at various sites throughout  the country and abroad.  The respondent-Union represents  the cause of 168 muster roll employees.  The respondents  were working at the bridge construction unit of the appellant  at Kanpur in various capacities.  The terms and conditions of  employees of the appellant are governed by Standing Orders  Certified under the U.P. Industrial Employment (Standing  Orders) Act, 1946, clause L- 2.12 of which reads:  "Any workman who remains absent from  duty without leave or in excess of the  period of leave originally sanctioned or  subsequently extended for more than 10  consecutive days,  shall be deemed to  have left the services of the corporation  on his own accord, without notice,  thereby terminating his contract of  service with the corporation and his  name will accordingly be struck of the  rolls."

From 12th October 1995 the respondents-workmen did  not attend their jobs.  On 18th October 1995 the appellant  issued an order which is quoted: "Some of the workmen working at  Betwa Bridge, Arichghat, Jhansi are  absenting from duty since 12.10.1995.   Direction for smooth functioning of the  work in the interest of the Corporation  has already been given vide this Office  Notice No. 1102/1E/126 dated  16.10.1995 to such workmen.

In the light of the aforesaid, it is made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

clear that such of the workmen who do  not present themselves for duty and do  not perform work or discharge their  duty, then in accordance with the  provision contained in Clause L-2.12 of  the Certified Standing Order of the U.P.  State Bridge Corporation Ltd. [such of  the workmen, who are continuously  absent for more than 10 days, in  respect of them, it shall be presumed  that they have left the services of the  Corporation without any notice and  thus, their contract of service with the  Corporation has come to an end and  accordingly, their names from the  muster roll shall be removed] action  shall be taken in the interest of the  Corporation."     

On 22nd December 1995 as amended on 28th  December 1995 a similar notice was published in a  Hindi newspaper which also stated that if the workmen  whose names were appended to the notice did not  report for duty within a period of three days from the  date of the publication of the notice, it would be  presumed that they had abandoned their services with  the Corporation without notice and their contract of  service would come to an end and their names would  be removed from the muster roll.  According to the  appellant despite the repeated notices the workmen  continued to absent themselves and ultimately on     19th January 1996 an order was issued putting an end  to the services of 168 workmen on the presumption  that they had abandoned their services with the  Corporation on their own. On 9th May 1996, one of the workmen whose  services were so terminated, namely Anand Prakash  filed a writ petition in the High Court before the  Lucknow Bench challenging the order of termination.   The writ petition was dismissed on the ground that the  workman could raise an industrial dispute if he so  desired.     A second writ petition was filed by the  respondent-Union in the High Court at Allahabad.  This  writ petition was allowed by orders which now are the  subject matter of challenge before us.      The learned Single Judge rejected the preliminary  objections raised by the appellant that the writ petition was  not maintainable, inter-alia, on the grounds that the  Corporation was not a State within the meaning of Article 12  and that an un-registered  Union did not have the locus to  represent the workmen’s cause.  It is not necessary to  consider the reasoning of the learned Single Judge as  neither of these points were raised before us by the  appellant.  On the question of the alternative remedy which  was available to the workmen under the Industrial Disputes  Act, the learned Single Judge was of the view that the case  did not involve any investigation into nor determination of  disputed questions of fact and that since the writ petition  was moved in 1995 and a long time had lapsed the Court  was justified in exercising its discretion under Article 226 to  entertain and dispose of the dispute.  It was also held that  although in Anand Prakash’s  case, the writ petition raising  the same issue  had been dismissed, the second writ petition   challenging the same order was not barred by the principles

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

of res-judicata particularly when no decision had been taken  by the Court while dismissing Anand Prakash’s writ  petition. On the other hand although the order in Anand  Prakash should not be affected in these proceedings,  nevertheless, the Learned Judge held, since the decision of  the High Court in the second writ petition would be binding,  it would be an  "infructuous exercise and mere formality" if  Anand Prakash were driven to a Labour Court causing him  to "suffer unnecessary agony".  On the merits, the learned Single Judge came to the  conclusion that the word "absence" did not by itself mean  "abandonment of service" and when an employee went on  strike it was not the intention to abandon service.  It was  said that "Resorting to strike is neither misuse of leave nor  over staying of leave.  Standing order does not provide for  any provision as to how the question of strike is to be dealt  with."  It was further said that the strike was not illegal as  no notice was required to be given to the respondent under  Section 22 of the Industrial Disputes Act, 1947.  It was also  held that in any event-  whether a strike was illegal or legal  - it did not amount to abandonment of service justifying  action under L-2.12.  At the highest, it would be an action of  misconduct for which a punishment  was provided under the  Standing Orders after an inquiry.  As there was admittedly  no inquiry before the services of the workmen were  terminated, therefore, the impugned order of termination  was also held to have been passed in violation of principles  of natural justice.  Finally, it was held that the order was  also bad because it did not specify the period during which  the workmen were supposed to be absent  and, therefore,  the order was not an order within the meaning of clause L- 2.12 and could not be sustained.  The order terminating  their services was accordingly quashed and it was directed  that the workmen including the said Anand Prakash, would  be deemed to be in service and "be treated as on continuous  service with all  notional service benefits, except however,  that they would not be entitled to any payment of arrears  for the period during which they did not work actually.   Except that each of them would be entitled to a  compensation for the whole period assessed at Rs.5000/-  each".   The appellants’ appeal was rejected by the Division  Bench. The Division Bench has given brief reasons for  upholding the decision of the learned Single Judge.  In  addition, note was taken of the appellant’s submission that  the project being completed, there was no question of  appointing the respondents in any other project.  This  submission was however rejected on the ground that there  was no specific pleading to this effect and no details had  been given of the project nor of the employees engaged  therein nor were the appointment letters of the respondents  produced.   An interim order granted by this Court on the special  leave petitions filed by the appellants directing maintenance  of status quo has been continuing since 3rd March 2003. The appellants have submitted that the High Court  should not have entertained the writ petition at all not only  because  disputed questions of  fact were involved but also  because the High Court had acted contrary to its previous  decision in Anand Prakash’s case. It was argued that the  reasons given by the High Court for entertaining the writ  petition by exercising discretion under Article 226 were  wrong and that the matter should have been left for decision  by the fora  provided under the Industrial Dispute Act, 1947.    On the merits, it is submitted that clause L-2.12 of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

Standing Orders had been properly invoked because the  workmen had in fact unauthorisedly absented themselves  without any reason.  According to the appellants, it could not  also be said that the workmen were on strike because they  had not given any notice of strike as was mandatorily  required under the U.P. Industrial Act, 1947.          Learned counsel appearing on behalf of the  respondent-Union  contended that the notice published in  the newspaper was invalid as it did not comply with clause  L-2.12 of the Standing Orders.  It is also submitted that on  the basis of the decisions of this Court reported in Express  Newspapers (P) Ltd. V. Michael Mark and Another  1963 (3) SCR 405 and G.T. Lad and Others V. Chemical  and Fibres of India Ltd. 1979 (1) SCC 590 that even if  the strike was illegal it could not be deemed to be an  abandonment of services.  It is stated that U.P. Industrial  Dispute Act (UPIDA) specifically provided for punishment for  an employee going on an illegal strike.   This was on the  basis that the workmen continued in duty and that action  could be taken in the case of such abstention from work  against the workman but only after holding a proper inquiry.   On the issue whether the High Court should have  entertained the writ petition, it is submitted that the  respondent should not be relegated to its remedies under  the UPIDA as the matter had been pending before the High  Court for several years.  It is further submitted that the  appellant was a State within the meaning of Article 12 of the  Constitution and was answerable to Court for any arbitrary  action.  The Certified Standing Orders, according to the  respondent, had statutory force and therefore Article 226  was properly invoked. We are of the firm opinion that the High Court erred in  entertaining the writ petition of the respondent-Union at all.   The dispute was an industrial dispute both within the  meaning of the Industrial Disputes Act, 1947 as well the  UPIDA, 1947.  The rights and obligations sought to be  enforced by the respondent-Union in the writ petition  are  those created by the Industrial Disputes Act.  In The  Premier Automobiles Ltd. V. Kemlekar Shantaram  Wadke 1976 (1) SCC 496, it was held  that when the  dispute relates to the enforcement of a right or an obligation  created under the Act, then the only remedy available to the  claimant is to get adjudication under the Act.  This was  because the Industrial Disputes Act was made to provide    "\005 a speedy, inexpensive and effective forum for resolution  of disputes arising between workmen and their employers.   The idea has been to ensure that the workmen do not get  caught in the labyrinth of civil courts with their layers upon  layers of appeals and revisions and the elaborate procedural  laws, which the workmen can ill afford.  The procedure  followed by civil courts, it was thought, would not facilitate a  prompt and effective disposal of these disputes.  As against  this, the courts and tribunals created by the Industrial  Disputes Act are not shackled by these procedural laws nor  is their award subject to any appeals or revisions.  Because  of their informality, the workmen and their representatives  can themselves prosecute or defend their cases.  These  forums are empowered to grant such relief as they think just  and appropriate.  They can even substitute the punishment  in many cases.  They can make and re-make the contracts,  settlement, wage structures and what not.  Their awards are  no doubt amenable to jurisdiction of the High Court under  Article 226 as also to the jurisdiction of this Court under  Article 32, but they are extraordinary remedies subject to  several self-imposed constraints.  It is, therefore, always in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

the interest of the workmen that  disputes concerning them  are adjudicated in the forums created by the Act and not in  a civil court.  That is the entire policy underlying the vast  array of enactments concerning workmen.  This legislative  policy and intendment should necessarily weigh with the  courts in interpreting these enactments and the disputes  arising under them".  Although these observations were made in the context  of the jurisdiction of the Civil Court to entertain the  proceedings relating to an industrial dispute and may not be  read as a limitation on the Court’s powers under Article 226,  nevertheless it would  need a very strong case indeed for  the High Court to deviate from the principle that where a  specific remedy is given by the statute, the person who  insists upon such remedy can avail of the process as  provided in that statute and in no other manner.         There is another aspect of the matter.  Certified  Standing Orders have been held to constitute statutory  terms and conditions of service - D.K. Yadav V. J.M.A  Industries 1993 (3) SCC 259.  Although this statement of  the law was doubted in Rajasthan State Road Transport   Corporation and Another V. Krishna Kant and Others  1995 (5) SCC 75, it was not deviated from. It was however  made clear that Certified Standing Orders do not constitute  ’Statutory Provisions’ in  the sense that dismissal or removal  of an employee in contravention of the Certified Standing  Orders would be a contravention of statutory provisions  enabling the workman to file a writ petition for their  enforcement.  This is what was said by this Court in  Rajasthan Transport Corporation (supra): "Indeed, if it is held that certified  Standing Orders constitute  statutory  provisions or have statutory force, a  writ petition would also lie for their  enforcement just as in the case of  violation of the Rules made under the  proviso to Article 309 of the  Constitution.  Neither a suit would be  necessary nor a reference under  Industrial Disputes Act.  We do not think  the certified Standing Orders can be  elevated to that status.  It is one thing  to say that they are statutorily imposed  conditions of  service  and an altogether  different thing to say that they  constitute statutory provisions  themselves."  

Finally, it is an established practice that the Court  exercising extra-ordinary jurisdiction under Article 226  should have refused to do so where there are disputed  questions of fact.  In the present case, the nature of the  employment of the workmen was in dispute.  According to  the appellant, the workmen had been appointed in  connection with a particular project and there was no  question of absorbing them or their continuing in service  once the project was completed.    Admittedly, when the  matter was pending before the High Court, there were 29  such projects under execution or awarded.  According to the  respondent-workmen, they were appointed as regular  employees and they cited orders by which some of them  were transferred to various projects at various places.  In  answer to this the appellants’ said that although the  appellant corporation tried to accommodate as many  daily  wagers as they could in any new project, they were always

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

under compulsion to engage local people of the locality  where work was awarded.  There was as such no question of  transfer of any workman from one project to another.  This  was an issue which should have been resolved on the basis  of evidence led.   The Division Bench erred in rejecting the  appellants submission summarily as also in placing the onus  on the appellant to produce the appointment letters of the  respondent-workmen. There was also a dispute as to the nature of the  absence of the respondent-workmen. Correspondence said  to have been exchanged between the parties with regard to  the demands raised by the respondent-Union has been  relied upon by the respondent in support of the submission  that the absence was really on account of a  strike.  It is also  submitted that the correspondence indicated that notice of  the strike had been given.  To counter the statement made  in the writ petition by the respondent that the workmen  were on strike,  the appellants  had said  that no notice of  strike had been given and, therefore, the strike, if any, was  illegal.   Significantly, the High Court has  not  relied upon  the correspondence nor has  it  come to any   decision    on  the question whether the strike was illegal or legal.  In fact  the High Court has proceeded on the basis that it was the  accepted case that there was no notice given by the  workmen that they were on strike.  It cannot, therefore, be  said, without more, that the absence of the respondent- workmen from work was because they were on strike. The High Court incorrectly applied the provisions of  Section 22 of the Industrial Disputes Act, 1947 to hold that  no notice of strike was necessary.  It is conceded by the  respondent that the operative Act was the UPIDA which  differs materially, in this connection, with the Industrial  Disputes Act.  Under Section 22 of the Industrial Disputes  Act, a notice of strike is required to be given, as held by the  High Court, only in the case of any public utility service and  the appellant corporation is not a public utility service.   However, under Section 65 of the UPIDA  the notice of strike  is required to be given in respect of an industrial  establishment. It is not argued on behalf of the respondent  that the appellant-Corporation is not an industrial  establishment.  Whatever the legal consequences of  not  giving of such notice may be, it  cannot be said in the  circumstances that the employees were admittedly on strike  as a matter of fact. The only reason given by the High Court to finally  dispose of the issues in its writ jurisdiction which appears to  be sustainable, is the factor of delay, on the part of the High  Court in disposing of the dispute. Doubtless the issue of  alternative remedy should be raised and decided at the  earliest opportunity so that a litigant is not prejudiced by the  action of the Court since the objection is one in the nature of  a demurer.  Nevertheless even when there has been such  a  delay where the issue raised requires the resolution of  factual controversies, the High Court should not, even when  there is a delay, short-circuit the process for effectively  determining the facts.  Indeed the factual controversies  which have arisen in this case remain unresolved.  They  must be resolved in a manner which is just and fair to both  the parties. The High Court was not the appropriate forum  for the enforcement of the right and the learned Single  Judge in Anand Prakash’s case had correctly refused to  entertain the writ petition for such relief. Apart from this, there is an additional reason why the  judgment of the High Court cannot be sustained on the  ground of alternative remedy.  When it was drawn to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

attention of the High Court that a previous writ petition  raising the same issue had been dismissed on the ground of  the existence of an adequate alternative remedy, the High  Court should not have continued to dispose of the matter  itself under Article 226 and in effect set aside the decision in  the previous writ petition.  It was argued before us by the respondent-Union that  the notice issued by the appellant-Corporation to the  workmen to rejoin duties did not sufficiently  comply with  the principles of natural justice and that individual notices  were required to be given to each of the workmen. The  submission was not raised by the respondent at any stage.     Besides, whether the notice by advertisement was sufficient  information for the purposes of compliance with the  requirements of natural justice is again a question of fact  the foundation of which should be pleaded and sufficiently  proved.  The constitutional validity of CSO L-2.12 has not been  questioned by the respondent. The respondent has  contended that the illegal strike cannot amount to  abandonment of service for the purpose of Clause L-2.12 of  the Standing Orders(CSO).  But was there a strike at all?  Or  was it mass absenteeism unconnected with the terms and  conditions of service?   Besides the submission that a person on illegal strike  does not abandon his job is erroneous.  An illegal ’strike’  cannot by definition be "authorised absence". It would be a  contradiction in terms. We may also draw support from  Section 25-B which defines "continuous service" as  "uninterrupted service, including service which may be  interrupted on account of sickness or authorised leave or an  accident or a strike which is not illegal, or a lock-              out or a cessation of work which is not due to any fault on  the part of the workman".  The specific exclusion of persons  on illegal strike plainly means that the period a person is on  illegal strike does not amount to service.  Different  considerations would no doubt prevail where the strike is  legal.  Workers on strike continue to be in service although  they may have ceased work.  If the strike is a legal one such  cessation of work or refusal to continue would be absence  authorised by law.   Under CSO L-2.12 a presumption is to  be drawn against an employee if such employee is  unauthorisedly absent.  Clearly, a person on illegal strike  and a person on legal strike are  both ’absent’,  but the  absence of the first is unauthorised and the second is not.   CSO L-2.12 raises a presumption against the employee and  it is for the employee to rebut that presumption by adducing  the evidence.   It is, therefore, imperative that the factual  basis is determined by the appropriate forum.  In any event  the decisions cited by the learned counsel for the respondent  as noted earlier, are factually distinguishable.  In Express  Newspapers (supra), there was no  condition of service    similar to Certified Standing Order L-2.12.  The fact of strike  was also not in dispute.  The Management had issued notice  terming the strike as unauthorised abandonment. In other  words, abandonment was pleaded as a fact on the basis of  the strike. The contention of the employer was that there  was no order of termination of service by the employer but a  relinquishment  of service by the workmen.  The submission  was not accepted because "the respondents by going on  strike clearly indicated that they wanted to continue in their  employment but were only demanding better terms.  Such  an attitude, far from indicating abandonment of  employment, emphasised  the fact that the employment  continued as far as they were concerned. The management

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

could not, by imposing a new term of employment,  unilaterally convert the absence from duty of striking  employees into abandonment of their employment".             The fact of strike was also admitted in G.T. Lad  (supra).  Here again there was no condition of service  similar to CSO L-2.12.  The Management had issued a notice  calling upon the workmen to report within a specified period  otherwise it would be construed as an abandonment.  The  workmen f   ailed to report within the aforesaid period.  The  Management struck  out the names of the workers from the  rolls on the ground that the workmen were not interested in   service and had totally abandoned it.  This Court held that  the abandonment was not a question of fact which was  required to be proved.  Where the only evidence was  absence because of strike, there was no abandonment.  It  was also held, following Express Newspaper (supra) that it  was not open to the company to introduce such changed  terms and conditions of service pending an industrial  dispute.           D.K. Yadav (supra) is an authority for the proposition  that the principle of natural justice would have to be read in  the Standing Orders.  That was a case where there was a  standing order similar to CSO L-2.12 except that 8 days’  margin was granted within which the workman was required  to return and satisfactorily explain the reasons for his  absence or inability to return after the expiry of leave.  This view was reiterated in the later decision of this Court in  Lakshmi  Precision Screws Ltd. V. Ram Bhagat 2002  (6) SCC 552 where it was held that the element of natural  justice was an in-built requirement of the Standing Orders.          In this case, the appellant- Corporation had issued two  notices calling upon the workmen represented by the  respondent to return to duty.  The workmen did not respond  to either of the notices.  As we have noted it was not  pleaded that the advertisement did not sufficiently comply  with the principles of natural justice. The notice was issued  giving an opportunity to the respondent to show cause why  the presumption should not be drawn under CSO L-2.12.   The respondent did not show cause.  In the circumstances,  the Management drew the presumption in terms of the CSO.              The respondent said that the notice was invalid  because it did not otherwise comply with the CSO L-2.12  because of the shortening of the period of absence. This was  not an issue raised at any stage.  In any event, we do not  see how the notice is not in compliance with the Certified  Standing Orders as quoted earlier.             The final submission of the respondent was that the  UPIDA provided for penalty after a departmental enquiry, in  respect of the workman who may have gone on illegal strike  and, therefore, there could be no termination of services on  account of illegal strike.  The submission is unacceptable as  we have said there is no proof that the respondents were on  strike at all.  Besides, merely because the action is  punishable does not mean that the consequence of an  unauthorised absence is not available under the Certified  Standing Orders if it so specifically provides.            In the circumstances, we have no hesitation in setting  aside the decision of the High Court in dismissing the writ  petition.  This order will, however, not preclude  the  respondent-Union if it is otherwise so entitled to raise an  industrial dispute under the UPIDA.           The appeals are allowed but without any order as to  costs.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9