Allahabad High CourtU.P. State Spg. Co. Ltd. vs R.S. Pandey And Anr. on 15 November, 2002Equivalent citations: 2003(1)AWC322, (2003)IILLJ699ALLAuthor:R.K. AgrawalBench:R.K. AgrawalJUDGMENT

 

R.K. Agrawal, J.1. The present special appeal has been filed by U. P. Stale Spinning Company Ltd.. against the judgment and order dated 27.8.1996 passed by the learned single Judge in CM. Writ Petition No. 15027 of 1987 whereby the learned single Judge had allowed the writ petition and had quashed the order of termination dated 1.12.1987 passed against the respondent-writ petitioner No. 1 and 4.1.1988 passed against the respondent-writ petitioner No. 2.2. Briefly stated the facts giving rise to the present special appeal are as follows :"The two respondents--writ petitioners while working in the U. P. State Spinning Company Ltd., Maunath Bhanjan district Azamgarh, made a claim of 15% of the basic pay as interim relief as was being paid to the officer and clerical staff of the Headquarters as there was no reason for refusing the said relief to the staff of Maunath Bhanjan Unit of the appellant Mills. They also submitted a memorandum representing the clerical staff of the Mills. It appears that respondent-writ petitioner No. 2 met the Chief Executive Officer of the Azamgarh Unit regarding the said demand, who, however, it is alleged threatened him with serious consequences including transfer, termination and other harms unless he withdrew the said demand. Being apprehensive the respondent-writ petitioners approached this Court by filing C.M. Writ Petition No. 15027 of 1987, with the following reliefs :(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) issue a writ, order or direction directing the respondents to pay 15% of the basic pay as interim relief and fixed D.A. of Rs. 100 to the clerical staff of the Maunath Bhanjan Unit Mills ;(c) issue any other suitable writ, order or direction which this Hon'ble Court may deern fit and proper in the circumstances of the case ; and(d) to award cost of this writ petition to the petitioners against the contesting respondents.While the writ petition was pending, several applications were filed by the respondent-writ petitioners for amendment of the writ petition incorporating the various facts and reliefs. Altogether 5 applications for amendment were filed. Considering the contents of the writ petition including its prayer, the learned single Judge allowed the amendment applications which related to dismissal of the respondent-writ petitioners. The learned single Judge found that the notice to show cause was alleged to have been refused by the respondent-writ petitioner No. 1 when sent by the appellant on 21.11.1987, whereafter the same show cause notice was sent on 23.11.1987 by registered post which was received by the respondent-writ petitioner No. 1 on 26.11.1987. The respondent-writ petitioner No. 1 sent his reply to the show cause notice on 26.11.1987, i.e., immediately the next day by registered post which was received by the appellant on 2.12.1987. However, a final order was passed on 1.12.1987 dismissing the respondent-writ petitioner No. 1 from service. The learned single Judge held that sending of reply by the respondent-writ petitioner No. 1 to the appellant by registered post was not in any way irregular. In the background of threat extended by the appellant and time to time again threat of transfer, suspension and disciplinary proceedings fully justify the sending of reply by registered post. The delay in receiving of such reply was not for the fault of the respondent-writ petitioner No. 1 as admittedly he sent the reply on the very next day of receiving show cause notice. Further the delay of 5, 6 days by postal authority to reach the reply to the appellant cannot be treated as a gross delay justifying them to complete the proceedings on 1.12.1987, when the termination order was being passed and no reason or urgency have been shown in not waiting for a few days for receiving reply to the show cause notice and the whole proceedings appears to have been completed within a very short span of about 10 days. The learned single Judge held that the appellant have failed to produce any material on record to justify such a hurry and thus for no fault of the respondent-writ petitioner No. 1 and there being no delay at all on his part, his reply to the show cause notice could not even be considered by the appellant. In the circumstances the order of termination was quashed. So far as the respondent-writ petitioner No. 2 is concerned, the learned single Judge, however, has held that his services were terminated vide order dated 4.1.1988 for the sole reason that he did not join the transferred place at Akbarpur. The order of termination was published in the news paper dated 4.1.1988. The learned single Judge held that the appellants have not disclosed any material showing that any show cause notice in respect of the allegations of not joining the transferred post was ever served upon the respondent-writ petitioner No. 2. In these circumstances, the order of termination dated 4.1.1988 was also quashed."3. We have heard Sri V. B. Singh learned senior counsel assisted by Shri Vtjay Sinha, advocate on behalf of the appellant and Shrt R.N. Singh, learned senior counsel assisted by Shri G.K. Singh on behalf of the respondent-writ petitioners.4. Shri V.B. Singh, learned senior counsel submitted that the respondent-writ petitioners had filed the writ petition before this Court when order of termination was not in existence, as the order of termination came to be passed subsequently which could not have been challenged by way of amendment application in the writ petition and instead if at all, could have been challenged by a separate writ petition. He further submitted that against the order of termination the respondents writ petitioner No. 1 had an adequate alternative remedy of raising an industrial dispute under the provisions ofIndustrial Disputes Act, and thus the writ petition itself was not maintainable. He further submitted that the charge-sheet was issued in the month of August, 1987 and the enquiry was concluded on 2.11.1987 and the second show cause notice was not at all required in a domestic enquiry. However, the show cause notice was published on 25.11.1987 in the news paper instead of sending a reply by hand as the respondent-writ petitioner No. 1 resided in the staff quarter in the Mill premises. The respondent-writ petitioner No. 1 chose to send the reply by registered post and the reply did not reach the appellant within the stipulated time and therefore, the appellant was justified in passing the order of termination. He further submitted that under the Industrial law, if the labour court comes to the conclusion that the domestic enquiry is vitiated, the Employer have a right to lead evidence to show that the order of termination is justified on the materials which may be placed on record. He thus submitted that the appellants have been denied the right to prove the charges levelled against the respondent-writ petitioners which they could have done before the labour court, even if the enquiry was held to be improper or vitiated. He further submitted that the order of termination passed against the workmen cannot be set aside underArticle 226of the Constitution of India on the ground that proper enquiry was not held and principle of natural justice has not been complied with and the respondent-writ petitioners have not suffered any prejudice. He relied upon the following decisions for the proposition that proper remedy is to raise an Industrial Dispute and recourse toArticle 226of the Constitution of India is not proper :(1) The Premium Automobile Ltd. v. Kamlakar Shanta Ram Wadke and Ors., AIR 1975 SC 2238,
 

(2) Rajasthan Road Transport. Corporation and Anr. v. Krishna Kant and Ors., AIR 1996 SC 469.(3) Scooters India Ltd. and Ors. v. Vijay E. V. Eldred, JT1998 (8) SC 2O4.(4) Chandrakant Tukaram Nikam and Ors. v. Municipal Corporation of Ahmedabad and Anr., 2002 (92) FLR 1159.(5) Chandrama Singh v. Managing Director, U. P. Cooperative Union, Lucknow and Ors., 1991 (2) AWC 1005 : 1991 (2) UPLBEC 898 (FB)
 

(6) Dharam Veer Singh and Ors. v. State of V. P., 1998 (2) AWC 2.125 (NOC) : 1998 (80) FLR 189.He further submitted that there is no requirement to supply the enquiry report before terminating the service.In support thereof he relied upon a decision of this Court in the case ofJ.K. Cotton Spinning and Weaving Mills Co. Ltd., Kanpur v. State of U. P. and Ors., 1997 (2) AWC 611 : 1997 (76) FLR 372.So far as giving of second show cause notice, he relied upon a decision of Supreme Court in the case of Shahdara (Delhi)-Saharanpur Light Railway Company Ltd. v. Shahdara--Saharanpur Railway Workers' Union, 1969 (1) LLJ 734, He also relied upon a decision of the Hon'ble Supreme Court in the case ofUnited Planters Association of Southern India v. K.G. Sangameshwaran and Anr., 1997 (4) SCC 741 and submitted that even if there is omission to afford opportunity of hearing during domestic enquiry, it can be cured by adducing evidence before the appellate authority in support of the charges which had culminated in dismissal of the person concerned.5. Shri R.N. Singh, learned senior counsel however, submitted that the writ petition was filed on 3.8.1987, when the order of termination was not in existence. The order of termination was passed subsequently on 1.12.1987 and 4.1.1988 in respect of the two respondent-writ petitioners which was challenged by way of an amendment application. He submitted that U. P. State Spinning Company Ltd., is a State Government undertaking and is fully controlled by the State Government, thus it comes within the definition of the word 'State' within the meaning ofArticle 12of the Constitution of India and any arbitrary action of the appellant. U. P. State Spinning Mills Company Ltd. can be challenged before this Court underArticle 226of the Constitution of India. He further submitted that the appellant had acted arbitrarily in terminating the service of the respondents writ petitioners without even considering their reply. It is not in dispute that the show cause notice was served upon the respondent-writ petitioner No. 1 on 25.11.1987. The show cause notice was issued on 21.11.1987, which is alleged to have been refused by the respondent-writ petitioners and was again sent on 23.11.1987 by registered post. The respondent-writ petitioner No. 1 had given his reply by registered post on 26.11.1987 which was received by the appellant on 2.12.1987 i.e., within 5 days instead of waiting for a reasonable period the appellant for the reason best known to them hastily passed an order terminating the services on 1.12.1987, which itself speaks of the arbitrary and high handedness action.6. The writ petition remained pending for about 9 years and about 15 years have lapsed now and if this Court relegates the respondent-writ petitioners to raise industrial disputes, it will be causing huge irreparable injury. He thus submitted that this Court' should decide the controversy on merits. In support of his plea he relied upon a decision of a Division Bench of this Court in the case of Pradeep Kumar Singh v. V.P. State Sugar Corporation and Anr., 2001 (4) AWC 3032 : 2001 (3) UPLBEC 2571, wherein this Court had held that where an order has been passed in gross violation of principle of natural justice and the Employer falls within ambit of 'State' within the meaning ofArticle 12and the writ petition was pending for 5 years, it should not have been dismissed on the ground of alternative remedy of raising a dispute before the labour court. He further submitted that appellant being a State is expected to act in a reasonable manner and not arbitrarily and if the action of the State is unreasonable or arbitrary, it is violative ofArticle 14of the Constitution of India and therefore, the aggrieved person in the present case the respondent-writ petitioners are well within their right to invoke the jurisdiction of this Court underArticle 226of the Constitution of India.7. Having heard the learned counsel for the parties, we find that the appellant U. P. State Spinning Company Ltd. is a State Government undertaking and is fully controlled by the State of U. P. It thus falls within the term 'State' within the meaning ofArticle 12of the Constitution of India. Thus, any of its action which is arbitrary and unreasonable can be challenged by an aggrieved person by invoking jurisdiction underArticle 226of the Constitution of India. In the present case, the writ petition was filed in the year 1987 and remained pending for 9 long years. Counter-affidavits and rejoinder-affidavits had been exchanged between the parties. Therefore, after such a long gap, relegating respondent-writ petitioners to raise an industrial dispute and dismissing the writ petition on the ground of alternative remedy would not be just and proper. In this connection, reference may be made to the two decisions of the Hon'ble Supreme Court, namely, Lala Hridaya Narayan v. Income Tax Officer, AIR 1971 SC 33 and Dr. Bal Krishna Agrawal v. State of U. P. and Ors., 1995 (1) AWC 509 (SC) : 1995 ALJ 454, which have been followed by us in the case of Pradeep Kumar Singh (supra). So far as the question that the respondent-writ petitioners are workmen and can raise an industrial dispute under theIndustrial Disputes Actis concerned, all the decisions relied upon by Shri V.B. Singh have been considered by us in the case of Pradeep Kumar Singh (supra), and it has been held that alternative remedy is not a bar where a writ petition has been filed alleging violation of principle of natural justice. It is not necessary to refer and to discuss the various decisions relied upon by Shri V.B. Singh, learned senior counsel in regard to raising the plea of alternative remedy. Thus, the preliminary objection raised by Shri V.B. Singh, learned senior counsel cannot be sustained.8. So far as the question that a second show cause notice is not required or the copy of the enquiry report is not to be given or before the labour court the Employer has a right to adduce evidence to prove the charges where the domestic enquiry Is held to be improper is concerned, suffice it to mention here that the learned single Judge has simply set aside the order of termination on the ground that the same have been passed in a hasty manner without even considering the reply which was sent by the respondent-writ petitioners No. 1 by registered post on 26.11.1987, immediately the next day of receiving the show cause notice. The Court has not prohibited the Employer from considering the reply and passing an order afresh in accordance with law. So far as the respondent-writ petitioner No. 2 is concerned, we find that there is no material on record to show that he was given any opportunity or any show cause notice, but straightaway the order of termination has been passed and published in the news paper. The entire action in passing the order of termination was taken in a haste and in an arbitrary manner. The appellant being a State is expected to act in a just and reasonable manner. Since we have held that the impugned order of termination has been passed in gross violation of the principles of natural justice and in a hasty manner and the writ petition was maintainable, it is not necessary to refer to the various decisions cited by Sri V.B. Singh regarding the necessity of giving second show cause notice and the right of the employer to adduce evidence before the labour court to justify the punishment.9. In view of the foregoing discussions, we do not find any merit in this special appeal and it is hereby dismissed.