Holding

A writ petition under Article 226 is not maintainable where a specific statutory remedy under the Industrial Disputes Act, such as Section 9A, is available, unless exceptional circumstances are shown.

Summary

The employer, Hindustan Steel Works Construction Ltd., withdrew a construction allowance previously paid to employees at the Vizag steel plant and the employees' union filed a writ petition under Article 226 alleging violation of Section 9A of the Industrial Disputes Act, 1947. The Andhra Pradesh High Court held the petition maintainable, reasoning that no factual controversy was decided, and the Division Bench affirmed. On appeal, the Supreme Court ruled that a writ petition cannot be entertained where a specific statutory remedy under the Industrial Disputes Act is available, unless exceptional circumstances exist. It observed that the High Court had failed to consider the factual question of whether Section 9A applied, which is a question of fact. Consequently, the appeal was allowed and the Court directed the appropriate Government to refer the questions of applicability of Section 9A and whether the withdrawal amounted to a change in conditions of service to the appropriate tribunal.

Issues considered

Whether a writ petition under Article 226 is maintainable when a specific statutory remedy under Section 9A of the Industrial Disputes Act, 1947 is available.
Whether the withdrawal of the construction allowance constitutes a change in conditions of service requiring notice under Section 9A.
Whether Section 9A of the Industrial Disputes Act applies to the facts of the case.

Legislation cited

Industrial Disputes Act, 1947s. 2(s), s. 74, s. 75, s. 9A

Subjects

Article 226Industrial Disputes ActSection 9Awrit petitionmaintainabilityconstruction allowanceconditions of servicetribunal referralstatutory remedylabour law

Judgment

A HIND USTAN STEEL WORKS CONSTRUCTION LTD.
AND ANR.
v.
HINDUSTAN STEEL WORKS CONSTRUCTION LTD.,
EMPLOYEES UNION

B AUGUST 11, 2005

[ARIJIT PASAYAT AND H.K. SEMA, JJ.]

Constitution of India, 1950-Article 226-Writ Petition-Challenging
c act of employer as violative of provision under section 9A of Industrial
Disputes Act-Maintainability of the Petition questioned-Petition held
maintainable by Single Judge as well as Division Bench of High Court-
Applicability of Section 9A not considered-On appeal, held: Writ Petition
is not maintainable when statutory remedy is available, unless exceptional
circumstances are mode out-Courts below overlooked the fact that question
D
of applicability of section 9A is essentially a question offact-Direction to
Government to refer the questions framed, to the appropriate Tribunal-
Industrial Disputes Act, 1947-Section 9A.

The construction allowance given to the respondent-employees by
E appellant-employer were withdrawn. Writ Petition was filed challenging
the withdrawal as violative of Section 9A oflndustrial Disputes Act, 1947.
The maintainability of the petition was question on the ground that
alternative statutory remedy was available. Single Judge of High Court
held that the petition was maintainable as no factual controversy was
adjudicated. Division Bench of High Court confirmed the order of High
F
Court. Hence the present Appeal.

Allowing the appeal, the Court

HELD : 1. Writ Petition under Article 226 of the Constitution of
G India, 1950 should not be entertained when the statutory remedy is
available under Industrial Disputes Act, 1947 unless exceptional
circumstances are made out. (543-G-H]

Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors.,
H (1964) 6 SCR 913, followed.
540
HINDUSTAN STEEL WORKS CONST_ LTD "·HINDUSTAN STEEL WORKS CONST LTD. EMPLOYEES UNION 541

U.P. State Bridge Corporation Ltd and Ors. v. U.P. Rajya Setu Nigam A
S. Karamchari Sangh, [2004] 4 SCC 268; Premier Automobiles Ltd. v.
KamlekarShantarum Wadke, [1976] 1SCC496; RajasthanSRTCv. Krishna
Kant, [19951 5 SCC 75; Chandrakant Kukaram Nikam v. Municipal Corpo-
ration of Ahmedabad and Anr., [20021 2 SCC 542 and Scooters India and
Ors. v. Vijay v. Eldred, [1998] 6 SCC 549, relied on. B

2.1. Whether any particular practice or allowance or concession had
become a condition of service would always depend upon the facts and
circumstances of each case. [546-F-G]

Hindustan Lever Ltd v. Ram Mohan Ray and Ors., [197314 SCC 141,
c
relied on.

2.2. Single Judge and the Division Bench both have failed to consider
the basic issues about applicability of Section 9A of the Act in the facts
of the case. Single Judge observed that he was not entering into the factual
D
controversy, overlooking the fact that the question relating to applicabil-
ity of Section 9A is essentially question of fact. Because of the long passage
of time, the attendant circumstances of the case and in view of the
agreement that this is a matter which requires to be referred to the
Tribunal, it is directed that the appropriate Government shall refer the E
following questions for adjudication by the appropriate Tribunal : (1)
Whether there was violation of Section 9-A of the Industrial Disputes Act
1947? (2) Whether the withdrawal of the construction allowance amounted
to the change in the conditions of service? [547-E-F, B-C, F-Hl
F
Nirmal Singh v. State of Punjab, AIR (1984) SC 1619; Sankari Cement
Alai Thozhi!alar Munnetra Sangam v. Management of India Cement Ltd,
(1983) 1 Lab L.J. 460; V. Veerarajan and Others v. Government of Tamil
Nadu and Ors., AIR (1987) SC 695 and Sharad Kumar v. Govt. ofN.C.T.
of Delhi, AIR (2002) SC 1724, referred to. G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3006 of2003.

From the Judgment of Order dated 6.8.2002 of the Andhra Pradesh High
Court in W.A. No. 2022 of 1999. H
542 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A Jaideep Gupta, Debmalya Banerjee and Ms. Shipra Ghose for the
Appellants.

Rana Mukherjee, Anand Dey, Bikas Kar Gupta, D. Bharat Kumar and
Abhijit Sengupta for the Respondent.

B The Judgment of the Court was delivered by

ARIJIT P ASAY AT, J. : Hindustan Steel Works Construction Limited
(hereinafter referred to as the 'employer') calls in question legality of the
judgment rendered by Division Bench of the Andhra Pradesh High Court
affirming the order passed by the learned Single Judge holding that with-
c drawal of construction allowance which was being earlier allowed to the
employees working at the Vishakhapatnam was in violation of Section 9-A
of the Industrial DispJtes Act, 1947 (in short the 'Act'). According to the
employees as urged in the writ petition it was done without following the
mandatory provisions of Section 9-A and was in violation of principles of
natural justice.
D
Factual aspects need to be noted in brief are as follows:

Employer started construction work of Vizag Steel Plant in 1979 and
employees stationed there were paid Project/construction allowance. The
employer discontinued payment of constru.::tion allowance and had paid City
E
Compensatory allowance. The withdrawal continued w.e.f. 7.4.1992. On
22.8.1974 a circular was issued by the employer notifying revision of pay
scales w.e.f. 1.1.1974. On 17.1.1975 the Ministry of Finance, Government
of India issued Office Memorandum with regard to construction projects and
grant of project allowance. It was indicated therein that the allowance was
F intended primarily to compensate the staff for lack of amenities such as
housing, schools, markets, dispensaries etc. Since November 1979 the
employees were paid project/construction allowance. In 1986 a High Power
Committee was appointed by this Court to go into the questions relating to
the implementation of the recommendations of the Fourth Pay Commission.
The final report was submitted on 2.11.1988. The issue relating to project/
G construction allowance was set out in Chapter 12 of the report. By order dated
3.5.1990 this Court directed implementation of the recommendations of the
High Power Committee. According to the appellants there was no restriction
on withdrawal of the allowance under the changed circumstances. The
allowance was specific and particular in the sense that it was payable under
H certain circumstances.
HINDUSTAN STEEL WORKS CONST.LTD.~- HINDUSTAN STEEL WORKS CONST. LID. EMPLOYEES UNIONfPASAYAT,J.] 543

Questioning legality of the withdrawal writ petition was filed before A
the Andhra Pradesh High Court, which was allowed by the learned Single
Judge. The primary challenge was that there was clear violation of the
mandatory requirements of Section 9-A and, therefore, order was not
sustainable. The employer questioned maintainability of the writ petition
contending that efficacious alternative and statutory remedy is available B
under the Act and writ petition was not maintainable, particularly, when
factual controversy is involved. The question whether there was violation of
the requirements of Section 9-A is essentially one of facts.

The High Court was of the prima facie view that withdrawal of the
construction allowance amounted to variation of the terms and conditions of C
service and, therefore, there was violation of the requirements of Section 9-
A of the Act. It was observed that since no factual controversy has been
adjudicated, the writ petition was maintainable. Questioning correctness of
the view expressed by learned Single Judge writ appeal was filed before the
Division Bench which dismissed the appeal holding that the foamed Single D
Judge was correct in his view.

In support of the appeal, learned counsel for the appellants submitted
that both the learned Single Judge and the Division Bench did not consider
the specific plea that statutory remedy is available to the employees and f6r
that matter the union could not have questioned the legality of the order of E
withdrawal of construction allowance by filing writ petition. It was further
submitted that whether Section 9-A had any application to the facts of the
case essentially involves questions of fact and reasoning of learned Single
Judge and the Division Bench are not supportable.
F
In response, learned counsel for the respondent-union submitted that
both the learned Single Judge and the Division Bench have noted that on the
facts of the case that Section 9-A had clear application and, therefore, there
is no infirmity in the judgments to warrant interference.

In a catena of decisions it has been held that writ petition under Article G
226 of the Constitution of India, 1950 (in short 'the Constitution') should not
be entertained when the statutory remedy is available under the Act, unless
exceptional circumstances are made out.

In UP. State Bridge Corporation Ltd and Ors. v. UP. Rajya Setu H
544 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A 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
B
under the statute. To same effect are the decisions in Premier Automobiles
Ltd. v. Kamlekar Shantarum Wadke, [1976] 1 SCC 496, Rajasthan SRTC v.
Krishna Kant, [1995] 5 SCC 75, Chandrakant Tukaram Nikam v. Muncipal
Corporation of Ahmedabad and Anr., [2002] 2 SCC 542 and in Scooters
India and Ors. v. Vijai v. Eldred, [1998] 6 SCC 549.
c
In Premier Automobiles Ltd. case (Supra) 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
D 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
E
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
F 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
G 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".

H Section 9-A of the Act reads as follows:
HINDUSTAN STEEL WORKS CONST LTD v. HINDUSTAN STEEL WORKS CONST. LTD. a.M.OVEalJND' (PA.SA.VAT. 1.1 545

"9-A Notice of Change - No employer, who proposes to effect any A
change in the conditions of service applicable to any workman in
respect of any matter specified in the Fourth Schedule, shall effect
such change, -

(a) without giving to the workman likely to be affected by such
change a notice in the prescribed manner of the nature of the change
B
proposed to be effected; or

(b) within twenty-one days of giving such notice :

Provided that no notice shall be required for effecting any such C
change -

(a) where the change is effected in pursuance of any (settlement or
award); or

(b) where the workman likely to be affected by the change are D
persons to whom the Fundamental and Supplementary Rules, Civil
Services (Classification, Control and Appeal) Rules, Civil Service
(Temporary Service) Rules, Revised Leave Rules, Civil Services
Regulations, Civilians in Defence Services (Classification, Control
and Appeal) Rules or the Indian Railway Establishment Code or any
other rules or regulations that may be notified in this behalf by the E
appropriate Government in the ' Official Gazette, apply."

In Hindustan Lever Ltd v. Ram 'Mohan Ray and Ors., [ 1973] 4 SCC
141, it was observed, inter alia, as follows:-

"It is hardly necessary to refer to the various decisions which were
F
cited before us as to what would constitute conditions of service the
change of which would require notice under Section 9-A of the Act.
In Dharangadhara Chemical Works Ltd v. Kanju Ka/u and Others,
(1955) I LLJ 316 LAT., the Labour Appellate Tribunal oflndia held
that the increase in the weight of bags to be carried from I cwt. to G
I 1/2 cwt. was a change in the workload and the company was bound
to pay wages as the workmen were willing to work but did not work
on account of the unreasonable attitude adopted by the management.
In Chandrama/ai Estate v. Its Workmen, (1960) 2 LLJ 243, the
payment of Cumbly allowance was held to have become a condition
H
546 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A of service. In Graham Trading Co. (India) Ltd. v. Its Workmen,
[1960] 1 SCR 107 it was held that the workmen were not entitled
to Puja bonus as an implied term of employment. In Workmen of
Hindustan Shipyard Ltd. v. I.L. T., (1961) 2 LLJ 526, in the matter
of withdrawal of concession of coming late by half an hour (than
B the usual hour), it was held that the finding of the Industrial Tribunal
that Section 9-A did not apply to the case did not call for
interference. But the decision proceeded on the basis that the court
will not interfere in its jurisdiction unless there was any manifest
injustice. In Mcleod & Co. v. Its Workmen, [1965] 5 SCR 568, the
provision for tiffin was held to be an amenity to which the
c employees were entitled, and the provision of cash allowance in lieu
of free tiffin directed to be made by the industrial tribunal could not
be considered to be erroneous in law. In Indian Overseas Bank v.
Their Workmen, (1967-68) 33 FJR457, "key allowance" was treated
as a term and condition of service. In Indian Oxygen Limited v.
D Udaynath Singh, (1970) 2 LLJ 413: (1970) 2 FLR 350, withdrawal
by the management of the supply of one empty drum at a time at
reasonable intervals was held not to contravene Sections 9-A and
33. In Oil & Natural Gas Commission v. Their Workmen, (1972)
42 FJR 551, where there was nothing to show that it was a condition
of service that a workman should work for 6 1/2 hours only, no
E notice of change was held to be required under Section 9-A for
fixing the hours of work at eight. In Tata Iron & Steel Co. v.
Workmen, [1972] 2 SCC 383, change in weekly days of rest from
Sunday to some other day was held to require notice. A close
scrutiny of the various decisions would show that whether any
F particular practice or allowance or concession had become a
condition of service would always depend upon the facts and
circumstances ofeach case and no rule applicable to all cases could
be culled out from these decisions."
(Underlined for emphasis)

G In Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors.,
[1964] 6 SCR 913 the Constitution Bench of this Court observed as follows:

"It is true that the powers conferred on the High Courts under Art.
226 are very wide, but it is not suggested by Mr. Chatterjee that even
H these powers can take in within their sweep industrial disputes of
HINDUSTAN STEEL WORKS CONST. l TD. v. HlNDUSTAN STEEL WORKS CONST. l TD. EMJ1.0YEES UNION tpASAY AT, l.I 54 7

the kind which this contention seeks to raise. Therefore, without A
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 s. IO of the
Industrial Disputes Act, or seek relief, if possible, under sections 74 B
and 75 of the Act."

We find that the learned Single Judge observed that he was not entering
into the factual controversy, overlooking the fact that the question relating
to applicability of Section 9-A is essentially question of fact. The Division
Bench did not discuss the basic issues about the applicability of Section 9- C
A and whether on the facts of the case Section 9-A has really any application.
It was disposed of with the following observations:

"The employees concerned are workmen within the meaning of that
term as defined under Section 2(s) of the Act and withdrawal of D
construction allowanco from them tantamounts to a change in the
conditions of service. In that view of the matter, the management
of the appellant company ought not to have withdrawn the
construction allowance presently paid to the employees without
issuing notice envisaged under Section 9-A of the Act."
E
The inevitable conclusion, therefore, is that both learned Single Judge
and the Division Bench have failed to consider the basic issues. In the normal
course we would have left it to the respondent to avail appropriate remedy
under the Act.

F
However, because of the long passage of time (the writ petition was
filed in 1997), the attendant circumstances of the case in the background
noted above and in view of the agreement that this is a matter which requires
to be referred to the Tribunal, we direct that the appropriate Government shall
refer the following question for adjudication by the appropriate Tdbunal:
G
(I) Whether there was violation of Section 9-A of the Industrial Disputes
Act, 1947 as claimed by the employees?

(2) Whether the withdrawal uf the construction allowance amounted to the
change in the conditions of service?
H
548 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R.

A The parties shall jointly move the appropriate Government with a copy
of our judgment.

Nonnally, it is for the State Government to take a decision in the matter
of reference when a dispute is raised, the direction as noted above has been
B given in the circumstances indicated above.

In some cases, this Court after noticing that refusal by appropriate
Government to refer the matter for adjudication was primµ facie not proper,
directed reference instead of directing reconsideration. (See Nirmal Singh v.
State of Punjab, AIR (1984) SC 1619, Sankari Cement Alai Thozhilalar
c Munnetra Sangam v. Management of India Cement Ltd., (1983) 1 Lab.L.J.
460, V Veerarajan and others v. Government of Tamil Nadu and Ors., AIR
(1987) SC 695, Sharad Kumar v. Govt. ofN.C.T. of Delhi, AIR (2002) SC
1724).

D The parties shall be pennitted to place materials in support of their
respective stands. We make it clear that we have not expressed any opinion
on the merits of the case.

The appeal is allowed to the aforesaid extent with no order as to costs.

E K.K.T. Appeal allowed.