TMI Blog2004 (2) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants' said that although the appellant corporation tried to accommodate as many daily wagers as they could in any new project, they were always 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 condi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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