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U.P State Spinning Co. Ltd. v. R.S Pandey And Another
Factual and Procedural Background
The appellant–employer terminated the services of two workmen (Respondents 1 and 2). Both workmen had earlier filed a writ petition in the Allahabad High Court seeking, inter alia, (a) protection against transfer or termination, and (b) payment of 15 % of basic pay as interim relief along with fixed dearness allowance that was allegedly being paid to comparable staff at the employer’s headquarters.
Throughout the writ proceedings the employer consistently objected to the maintainability of the petition, contending that the Industrial Disputes Act, 1947 and the U.P. Industrial Disputes Act, 1947 provided an adequate and efficacious alternative remedy before Labour Courts/Industrial Tribunals. Notwithstanding these objections, a learned Single Judge quashed the orders of dismissal on the narrow ground that, in respect of Respondent 1, the final order had been passed before his reply to the show-cause notice was considered, and, in respect of Respondent 2, service of the show-cause notice had not been established.
The employer’s special appeal to a Division Bench was dismissed, prompting the present civil appeal to the Supreme Court. During the pendency of the appeal Respondent 2 died and the employer settled with his legal heirs; the challenge therefore survived only in relation to Respondent 1.
Legal Issues Presented
- Whether the High Court erred in entertaining and deciding a writ petition under Article 226 of the Constitution despite the availability of an efficacious statutory remedy under the Industrial Disputes Act and the U.P. Industrial Disputes Act.
- Whether the orders of dismissal passed against Respondent 1 were liable to be set aside solely because his reply to the show-cause notice was not considered before the termination order was issued.
- What directions, if any, should be issued where an employer contends that it can justify the dismissal by leading evidence afresh even if the original domestic enquiry is found defective.
Arguments of the Parties
Appellant-Employer’s Arguments
- The writ petition should have been dismissed in limine because the workmen had an adequate statutory forum under the Industrial Disputes Act.
- No special circumstances were pleaded or proved to justify bypassing that forum; the mere lapse of time in the High Court was attributable to the workmen’s repeated amendment applications.
- By invoking writ jurisdiction the workmen deprived the employer of its statutory right under Section 11-A of the Industrial Disputes Act to adduce evidence before the Labour Court to justify dismissal even if the domestic enquiry were held defective.
- The appeal was not pressed regarding Respondent 2 due to his demise and subsequent settlement with his legal heirs.
Respondent 1 – Workman’s Arguments
- The rule that writ jurisdiction is barred where an alternative remedy exists is discretionary, not absolute; gross violation of natural justice justifies direct recourse to Article 226.
- Passing the dismissal order before considering the reply to the show-cause notice constituted such a violation.
- The employer still retained liberty—granted by the High Court—to take action “in accordance with law”, so no prejudice was caused to it.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of H.P. v. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499 | Re-statement of the doctrine of alternative remedy under Article 226 | Illustrates that the rule is one of discretion, not of compulsion. |
| K.S. Rashid & Son v. Income-Tax Investigation Commission, 1954 SCR 738 | Wide but discretionary nature of writ jurisdiction | Part of historical line of cases showing High Court’s discretion is not unfettered. |
| Sangram Singh v. Election Tribunal, Kotah, (1955) 2 SCR 1 | Self-imposed limits on writ jurisdiction | Reinforces that writs are discretionary and may be refused when another remedy exists. |
| Union of India v. T.R. Varma, 1958 SCR 499 | Availability of alternative remedy as reason to refuse writ | Cited in the same chain of reasoning. |
| State of U.P. v. Mohammad Nooh, 1958 SCR 595 | Exceptions where writ may still lie despite other remedies | Supports the proposition that natural justice violations can justify writs. |
| K.S. Venkataraman & Co. (P) Ltd. v. State of Madras, (1966) 2 SCR 229 | Discretion in granting writs | Forms part of jurisprudential background relied upon. |
| State of M.P. v. Bhailal Bhai, (1964) 6 SCR 261 | Writ remedy not intended to supersede statutory schemes | Cited to emphasise discretionary nature of Article 226. |
| N.T. Veluswami Thevar v. G. Raja Nainar, 1959 Supp (1) SCR 623 | Discretionary limits on writs | Same line of authority. |
| Municipal Council, Khurai v. Kamal Kumar, (1965) 2 SCR 653 | Need to exhaust statutory remedies | Reinforces basic rule. |
| Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 | Availability of alternate forum | Cited for discretionary bar principle. |
| S.T. Muthusami v. K. Natarajan, (1988) 1 SCC 572 | Hierarchy of remedies must be exhausted | Supports employer’s contention. |
| Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75 | Policy underlying labour legislation; preference for Industrial Courts | Relied on to emphasise that labour disputes should go to forums under the Industrial Disputes Act. |
| Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293 | Statutory remedies ordinarily to be followed | Forms cumulative authority. |
| A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695 | Limited interference under Article 226 | Cited for same proposition. |
| L.L. Sudhakar Reddy v. State of A.P., (2001) 6 SCC 634 | Alternative remedy doctrine | Cited collectively. |
| Shri Sant Sadguru Janardan Swami v. State of Maharashtra, (2001) 8 SCC 509 | Exceptions to exhaustion rule | Noted in survey of law. |
| Pratap Singh v. State of Haryana, (2002) 7 SCC 484 | When writs can be entertained | Part of case-law review. |
| GKN Driveshafts (India) Ltd. v. ITO, (2003) 1 SCC 72 | Procedure when alternative statutory appeal exists | Used illustratively. |
| Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107 | Rule of exclusion of writ jurisdiction is one of discretion | Quoted for guiding principles. |
| G. Veerappa Pillai v. Raman & Raman Ltd., 1952 SCR 583 | Hierarchy of remedies | Cited in support. |
| CCE v. Dunlop India Ltd., (1985) 1 SCC 260 | Discipline in resorting to writ jurisdiction | Relied upon. |
| Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472 | Need to exhaust remedies | Part of cumulative citation. |
| Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5 | Exhaustion of remedies principle | Same purpose. |
| C.A. Abraham v. ITO, (1961) 2 SCR 765 | Statutory appeal bar to writ | Cited. |
| Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 | Hierarchy must be followed | Referenced. |
| H.B. Gandhi v. Gopi Nath & Sons, 1992 Supp (2) SCC 312 | When writ can bypass alternate remedy | Part of jurisprudential survey. |
| Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 | Three well-known exceptions to exhaustion rule | Guided Court’s analysis. |
| Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272 | Alternative remedy principle | Cited. |
| Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 | Hierarchy of forums | Referenced. |
| Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569 | Statutory appeals must be exhausted | Cited. |
| Ram & Shyam Co. v. State of Haryana, (1985) 3 SCC 267 | Alternative remedy illusory where bias alleged | Distinguished; High Court found statutory remedy not efficacious. |
| First ITO v. Short Bros. (P) Ltd., (1966) 3 SCR 84 | Appellate interference with High Court’s exercise of discretion | Basis for holding that Supreme Court will not interfere unless reasoning is palpably unsound. |
| State of U.P. v. Indian Hume Pipe Co. Ltd., (1977) 2 SCC 724 | Same as above | Used in the same context. |
| Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, (1976) 1 SCC 496 | Exclusive jurisdiction of labour fora | Strengthens employer’s plea. |
| Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad, (2002) 2 SCC 542 | Preferential forum under labour law | Relied on. |
| Scooters India v. Vijai E.V. Eldred, (1998) 6 SCC 549 | Labour disputes and writ jurisdiction | Cited. |
| Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., (1964) 6 SCR 913 | Industrial disputes should ordinarily go under I.D. Act | Quoted to similar effect. |
| Hindustan Steel Works Construction Ltd. v. Employees Union, (2005) 6 SCC 725 | Reaffirmation of alternative remedy rule | Highlighted recent view. |
| Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 | Proper relief when domestic enquiry is defective | Formed the template for directions issued by Supreme Court in present case. |
| R. v. Hillington, London Borough Council, (1974) 1 QB 720 | English authority on preference for statutory appeals over certiorari | Quoted to illustrate comparative law reasoning. |
| Hanson v. Church Commissioners, 1978 QB 823 | Observations on the complexity of choosing between prerogative and statutory remedies | Cited illustratively. |
| U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh, (2004) 4 SCC 268 | Departure from rule only on strong grounds | Cited to show stringency of exceptions. |
Court's Reasoning and Analysis
The Supreme Court undertook an exhaustive survey of constitutional and statutory jurisprudence on the doctrine of alternative remedy. While acknowledging that Article 226 power is wide and discretionary, the Court emphasised that where a specialised, efficacious forum exists—such as the Industrial Tribunal or Labour Court under the Industrial Disputes Act—High Courts should ordinarily decline writ relief unless exceptional circumstances are clearly demonstrated.
It found that the writ petitioners had not provided any convincing justification for bypassing the statutory mechanism; passage of time attributable to their own amendment motions could not legitimise writ invocation. Consequently, the High Court’s approach—treating mere procedural lapse (non-consideration of the reply before dismissal) as sufficient to quash the termination—was held erroneous.
Addressing the appropriate relief, the Supreme Court noted the employer’s statutory right under Section 11-A of the Industrial Disputes Act to lead evidence afresh where a domestic enquiry is found defective. Drawing guidance from Managing Director, ECIL v. B. Karunakar, it fashioned a pragmatic solution: reinstate Respondent 1 purely to enable completion of disciplinary proceedings, without automatically granting back wages or consequential benefits.
Holding and Implications
HELD: The judgments of the learned Single Judge and the Division Bench of the Allahabad High Court are set aside. Respondent 1 is reinstated solely for the purpose of enabling the employer to recommence and complete the departmental enquiry from the stage of considering his reply to the show-cause notice, which must be concluded within four months. No back wages or service benefits are payable at this stage; his ultimate entitlements will depend on the outcome of the fresh enquiry. The appeal is allowed to this extent with no order as to costs.
Implications: The decision reinforces the principle that High Courts should be slow to entertain writ petitions in labour matters when the Industrial Disputes Act provides a specialised, efficacious forum, unless a clear case of palpable injustice or lack of jurisdiction is made out. While no new legal doctrine is created, the judgment serves as a caution against bypassing statutory mechanisms and clarifies that even where a domestic enquiry is defective, employers may be afforded an opportunity to justify dismissal by leading evidence afresh.
Arijit Pasayat, J.— The appellant (hereinafter referred to as “the employer”) calls in question legality of the judgment rendered by a Division Bench of the Allahabad High Court dismissing the special appeal filed by the appellant. The special appeal was filed by the appellant questioning correctness of the judgment rendered by a learned Single Judge who had questioned the orders of termination in respect of Respondents 1 and 2.
2. The main stand of the appellant before the High Court was that the writ petition filed by the respondents should not be entertained as they had an efficacious, alternative and statutory remedy provided under the Industrial Disputes Act, 1947 (in short “the Act”) read with the U.P Industrial Disputes Act, 1947 (in short “the U.P Act”).
3. The background facts are as follows:
The respondents while working in the appellant's concern made claims of 15% of the basic pay as an interim relief as was being paid to the officers and clerical staff at the headquarters of the appellant's concern, as according to them there was no justifiable reason for refusing the said relief to the staff at some units. The writ petition was filed (including amended prayers), inter alia, with the following prayers:
(a) to issue a writ, order or direction restraining the respondents from transferring, terminating the services of the petitioners and harassing and causing any harm to the petitioners;
(b) to issue a writ, order or direction directing the respondents to pay 15% of the basic pay as interim relief and fixed DA of Rs 100 to the clerical staff of Maunath Bhanjan Unit Mills;
(c) to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case; and
(d) to award costs of this writ petition to the petitioners against the contesting respondents.
4. It is to be noted that five applications for amendments were filed and some of them were allowed by the High Court. Right from the beginning, the appellant was questioning maintainability of the writ petition as according to it statutory remedies were available and in the writ petition itself the writ petitioners accepted that the standing orders governing the service conditions were in operation. By one of the amendments, the order of dismissal passed was permitted to be questioned. So far as Respondent 1 is concerned, the stand was that the notice of show cause was alleged to have been refused by him when sent by the appellant on 21-11-1987. The same show-cause notice was sent on 23-11-1987 by registered post which was received by Respondent 1 on 26-11-1987. The writ petitioner (Respondent 1) sent his reply to the show-cause notice dated 26-11-1987 which was received by the appellant on 2-12-1987. But the order of dismissal was passed on 1-12-1987. Learned Single Judge rejected the plea relating to existence of alternative remedy and only on the ground that the final order was passed before the receipt of the show-cause reply, quashed the proceedings.
5. So far as Respondent 2 is concerned, it was held that the notice was given by publishing in the news item on the purported ground that he did not join the transferred post. The High Court held that the show-cause notice containing the allegation of non-joining was not established to have been served.
6. Learned Single Judge noted that the writ petition was pending for a great length of time and, therefore, it would not be legal and proper to dismiss the writ petition. He did not find substance in the plea that had the writ petitioners availed a statutory remedy under the Act and the U.P Act, the employer would have got the opportunity to show that the departmental proceedings were fair by adducing evidence in terms of Section 11-A of the Act. By filing writ petition according to the appellant, such a statutory right was rendered ineffective.
7. In the special appeal filed before the Division Bench, the stands taken were reiterated. It was specifically pointed out that the long pendency of the writ petition was primarily on account of the fact that several amendments were sought for and prayers for new reliefs were introduced. It was further submitted that even if the Industrial Tribunal or the Labour Court comes to the conclusion that domestic enquiry is vitiated, the employer has a statutory right to lead evidence to show that the order of termination is justified on the materials which may be placed on record. This right was being denied by the workmen approaching the High Court under Article 226 of the Constitution. The High Court did not consider the plea relating to the existence of alternative remedy and denial of opportunity to justify the order of termination by leading evidence to be of any consequence and held that the learned Single Judge had permitted the appellant employer to proceed further in accordance with law. That since the order of termination was passed in gross violation of principles of natural justice and in a hasty manner the writ petition was maintainable.
8. In support of the appeal, Mr M.N Rao, learned Senior Counsel submitted that the approach of the High Court is clearly erroneous. No reason was indicated by the writ petitioners for bypassing the statutory remedies. Even in the writ petition, nothing was said to justify bypassing the statutory remedy. In fact it was clearly stated that the standing orders governing the service conditions were in operation. The High Court should not have considered the passage of time as a factor to justify the action of the writ petitioners in straightaway filing the writ petition. As noted above, the long pendency was on account of the various amendments sought for by the writ petitioners. They should not have been permitted to take advantage of their own dilatory methods. It was however accepted that the appeal is not pressed so far as Respondent 2 is concerned as he had died during the pendency of the appeal and the appellant has settled the matter with the legal heirs of the said deceased Respondent 2.
9. In response, learned counsel for Respondent 1 workman submitted that existence of statutory remedy is not a rule of law but a law of caution and in appropriate cases the High Court can entertain writ petitions. This was a case where there was gross violation of principles of natural justice and, therefore, the High Court was justified in entertaining the writ petition and deciding the matter on merits. Merely because the employer had a right to justify the order of dismissal by adducing evidence, that cannot be a ground to deny the affected party the right to approach the High Court by filing a writ petition. In fact the employer has been permitted to take such action as is available in law by the orders of learned Single Judge and the Division Bench.
10. The issues relating to entertaining writ petitions when alternative remedy is available, were examined by this Court in several cases and recently in State of H.P v. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499
11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.
12. Constitution Benches of this Court in K.S Rashid and Son v. Income Tax Investigation Commission 1954 SCR 738, AIR 1954 SC 207, Sangram Singh v. Election Tribunal, Kotah (1955) 2 SCR 1, AIR 1955 SC 425, Union of India v. T.R Varma 1958 SCR 499, AIR 1957 SC 882, State of U.P v. Mohd. Nooh 1958 SCR 595, AIR 1958 SC 86 and K.S Venkataraman and Co. (P) Ltd. v. State of Madras (1966) 2 SCR 229, AIR 1966 SC 1089 held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
13. Another Constitution Bench of this Court in State of M.P v. Bhailal Bhai (1964) 6 SCR 261, AIR 1964 SC 1006 held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T Veluswami Thevar v. G. Raja Nainar 1959 Supp (1) SCR 623, AIR 1959 SC 422, Municipal Council, Khurai v. Kamal Kumar (1965) 2 SCR 653, AIR 1965 SC 1321, Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436, AIR 1984 SC 653, S.T Muthusami v. K. Natarajan (1988) 1 SCC 572, AIR 1988 SC 616, Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75, (1995) 31 ATC 110, AIR 1995 SC 1715, Kerala SEB v. Kurien E. Kalathil (2000) 6 SCC 293, AIR 2000 SC 2573, A. Venkatasubbiah Naidu v. S. Chellappan (2000) 7 SCC 695, L.L Sudhakar Reddy v. State of A.P (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra (2001) 8 SCC 509, Pratap Singh v. State of Haryana (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72.
14. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd. (2003) 2 SCC 107 this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
15. In G. Veerappa Pillai v. Raman & Raman Ltd. 1952 SCR 583, AIR 1952 SC 192, CCE v. Dunlop India Ltd. (1985) 1 SCC 260, AIR 1985 SC 330, Ramendra Kishore Biswas v. State of Tripura (1999) 1 SCC 472, AIR 1999 SC 294, Shivgonda Anna Patil v. State of Maharashtra (1999) 3 SCC 5, AIR 1999 SC 2281, C.A Abraham v. ITO (1961) 2 SCR 765, AIR 1961 SC 609, Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, AIR 1983 SC 603, H.B Gandhi v. Gopi Nath and Sons 1992 Supp (2) SCC 312, Whirlpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1, AIR 1999 SC 22, Tin Plate Co. of India Ltd. v. State of Bihar (1998) 8 SCC 272, AIR 1999 SC 74, Sheela Devi v. Jaspal Singh (1999) 1 SCC 209 and Punjab National Bank v. O.C Krishnan (2001) 6 SCC 569 this Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
16. If, as was noted in Ram and Shyam Co. v. State of Haryana (1985) 3 SCC 267, AIR 1985 SC 1147 the appeal is from “Caesar to Caesar's wife” the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case the writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for this Court to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy this Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expressed by this Court in First ITO v. Short Bros. (P) Ltd. (1966) 3 SCR 84, AIR 1967 SC 81 and State of U.P v. Indian Hume Pipe Co. Ltd. (1977) 2 SCC 724 That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well-recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings themselves are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.
17. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO (1970) 2 SCC 355, AIR 1971 SC 33 that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies, unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.
18. At this juncture, it would be appropriate to take note of the few expressions in R. v. Hillington, London Borough Council (1974) 1 QB 720, (1974) 2 All ER 643, (1974) 2 WLR 805 which seem to bring out the position well. Lord Widgery, C.J stated in this case: (All ER pp. 648f-649b)
“It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.
The statutory system of appeals is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the Secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these … whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.
An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used … I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law.”
19. After all the above discussion, the following observations of Roskill, L.J in Hanson v. Church Commrs. 1978 QB 823, (1977) 3 All ER 404, (1977) 2 WLR 848 (CA) may not be welcomed but it should not be forgotten also:
“There are a number of shoals and very little safe water in the unchartered seas which divide the line between prerogative orders and statutory appeals, and I do not propose to plunge into those seas….”
20. In a catena of decisions it has been held that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.
21. In U.P State Bridge Corpn. Ltd. v. U.P Rajya Setu Nigam S. Karamchari Sangh (2004) 4 SCC 268 it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke (1976) 1 SCC 496, Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75, (1995) 31 ATC 110, AIR 1995 SC 1715, Chandrakant Tukaram Nikam v. Municipal Corpn. of Ahmedabad (2002) 2 SCC 542 and in Scooters India v. Vijai E.V Eldred (1998) 6 SCC 549.
22. In Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75, (1995) 31 ATC 110, AIR 1995 SC 1715 it was observed as follows:
“[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 procedures 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 remake the contracts, settlements, 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.”
23. In Basant Kumar Sarkar v. Eagle Rolling Mills Ltd. (1964) 6 SCR 913, AIR 1964 SC 1260 the Constitution Bench of this Court observed as follows: (SCR p. 920)
“It is true that the powers conferred on the High Courts under Act 226 are very wide, but it is not suggested by Mr Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible, under Sections 74 and 75 of the Act.”
The above position was recently highlighted in Hindustan Steel Works Construction Ltd. v. Employees Union (2005) 6 SCC 725, (2005) 6 Scale 430.
24. Accordingly, the conclusion is inevitable that the High Court was not justified in entertaining the writ petition. Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this Court is slow to interfere merely on the ground of availability of alternative remedy. But the facts of the present case have special features, which warrant interference.
25. The residual question is what would the appropriate direction in such a case be. Stand of the employer is that it could have justified the order of termination by adducing any evidence even if it was held that there was some defect in the departmental proceedings. The solution is found in what was stated by this Court in Managing Director, ECIL v. B. Karunakar (1993) 4 SCC 727, (1993) 25 ATC 704. In para 31, it was observed as follows:
“[I]n all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the court/tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.”
26. In view of the above, we set aside the order of learned Single Judge as affirmed by the Division Bench by the impugned judgment and direct that within a period of four months the enquiry shall be completed by starting from the stage of service of show-cause notice and consideration of the reply, if any, filed in accordance with the standing orders holding the field. Respondent 1 shall be reinstated to service but without any back wages and other service benefits and his reinstatement shall be solely for the purpose of completing the departmental proceedings. His entitlements, if any, would be adjudicated by the authorities depending upon the result of the disciplinary proceedings.
27. The appeal is allowed to the aforesaid extent with no order as to costs.
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