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The Industrial Disputes Act, 1947
The Indian Penal Code
Article 226 in The Constitution Of India 1949
Article 12 in The Constitution Of India 1949
Section 26 in The Industrial Disputes Act, 1947

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Allahabad High Court
U.P. Rajya Setu Nigam Sanyukt ... vs U.P. State Bridge Corporation, ... on 18 May, 1999
Equivalent citations: 1999 (3) AWC 2065, (1999) IILLJ 1219 All, (1999) 2 UPLBEC 1157
Author: D Seth
Bench: D Seth

JUDGMENT

D.K. Seth, J.

1. In these cases a very simple but an interesting question is raised. The question as to whether, termination of service under Clause L-2-12 of the certified Standing Order of U. P. State Bridge Corporation Ltd. on the abandonment of service on account of unauthorised absence for more than consecutive 13 days during the period when admittedly the workmen were on strike, though might be illegal, could be sustained?

2. While opposing the proposition Mr. V. B. Singh, learned counsel for the petitioner appearing with Sri Narendra Mohan, learned counsel had sought to support the said question through different questions of law based on admitted facts. On the other hand, Shri N. C. Rajvsnshi ably assisted by Shri Arun Gupta, learned counsel for respondents had similarly raised various questions of law on admitted facts.

3. The facts in these cases are not in dispute. Those are in brief as follows :

in writ petition No. 36071 of 1995, services of 168 workmen were

terminated by an order dated 30.10.1995, contained in Annexure-6 to the writ petition and the order dated 4.11.1995 in respect of one workman, as amended. While in Writ Petition No. 4043 of 1996, services of 66 workmen were terminated by an order 9.1.1996, published in Hindi daily Dainik Jagran on 12.1.1996. In both the cases, the termination was effected by striking off the names of the respective workmen from the rolls in terms of Clause L-2-12 of the Standing Order for workmen employed in the U. P. State Bridge Corporation [hereinafter referred to as the said Corporation]. This fact has been asserted in Writ Petition No. 36071 of 1995 in paragraph 7 since been admitted in paragraph 17 of the counter-affidavit and as well as in Writ Petition No. 4043 of 1996 which fact does not appear to have been controverted by the respondents in view of the statement made in paragraphs 9 and 10 of the counter-affidavit which does not contain any specific denial.

4. The petitioners alleged that they were on strike for a considerable period through sitting dharna and various other modes in support of their demand for bonus and other claims whereas the respondents in the counter-affidavit had pointed out that no notice of such dharna or strike was ever given to the respondents by the Union, on the other hand, the Union had been adopting illegal means Impermissible in law despite management's requests to the workers to return to work. In these background, the names of two groups of workmen involved In the two writ petitions were struck off from the rolls on 30.10.1995. 4.11.1995 and 9.1.1996 respectively as stated herein before. In these background the contentions and counter contentions have since been raised by the counsel for the respective parties.

5. Mr. N. C. Rajvanshi, learned counsel for respondents had raised six preliminary objections. (i) The first one is that this writ petition is not maintainable since the

petitioners are seeking to enforce their alleged legal right arising out of standing orders which has no statutory force as has been held in the case of Rajasthan State Road Transport Corporation v. Krishna Kant. J995 (5) SCC 75, and as such the action of the respondents cannot be amenable to writ jurisdiction, (ii) Secondly he contends that the dispute as to whether the names can be struck off on account of continuous absence of the workers is a question of fact viz., whether they were on strike or unauthorised absence could be adequately dealt with before the Labour Court or Industrial Tribunal when this Court is not capable of determining such question of fact, the writ petition is not maintainable on the ground of alternative remedy. (iii) He next contends that the petitioner had sought for leave to amend the writ petition seeking to Incorporate the prayer challenging the vires of Clause L-2-12 of the Standing Order which, was since granted on 18.9.1996 in Writ Petition No. 36071 of 1995 from which Special Appeal No. 212 of 1996 preferred by the respondents is pending before the Division Bench while this Court had allowed the amendment on 17.7.1998 in Writ Petition No. 4043 of 1996 and had listed both the matters on 6.8.1998 and as such this writ petition cannot be maintained to challenge the vires of the said clause of the Standing Order ; (iv) He then contends that since certified standing order has no statutory force as has been held in the case of Rajasthan Stale Road Transport Corporation (supra), the vires cannot be challenged under Article 226 of the Constitution and as such the writ petition in relation thereto cannot be maintained. (v) He next contends that the individual workmen had not come and the Union which is an unregistered one could not maintain the writ petition on behalf of the individual workmen, (vi) His last contention was that the same very order dated 30.10.1995 was challenged by means of Writ Petition No. 2317 of 1996 by one Shri Anand Prakash one of the worker whose case is also sponsored in this

proceeding and the said writ petition having been dismissed on 9.5.1996, the writ petition challenging the same order is barred by the principles of res judicata.

6. Apart from the above preliminary objection, both Mr, N. C. Rajvanshi and Arun Gupta learned counsel for the respondents who had argued the case one or the other day. had addressed the Court on merit also. According to the counsel for the respondents, the workmen continuously absented for more than 13 days and, therefore, it was open to the Corporation to strike their names off the rolls under the aforesaid Standing Order. He contended that the strike being illegal in the absence of compliance of the required procedure prescribed by the Industrial Disputes Act the same is to be treated as continuous absence within the meaning of the said Clause L-2-12 of the Standing Order and as such their names could very well be struck off. When the strike is legal, the petitioner cannot take advantage of the illegal strike to challenge an order passed under the relevant Standing Order for striking the names of the workmen off the roll treating them to have abandoned their services. On these grounds, it is contended by learned counsel for the respondents that these writ petitions should be dismissed.

7. Mr. V. B Singh, learned counsel for the petitioner, on the other hand, contended that though the action taken under the standing order cannot be challenged through writ proceedings yet in the present case U.P. State Bridge Corporation being the State within the meaning of Article 12 of the Constitution which fact is not in dispute it is very much amenable to writ jurisdiction. If the Corporation is amenable to writ jurisdiction, its actions can very well be challenged in writ jurisdiction simply on the basis that the Corporation is a State within the meaning of Article 12 and is amenable to writ jurisdiction. He next contends that the bar of alternative remedy la not an absolute bar. Where the High Court in writ jurisdiction is

not required to determine the

disputed question of fact and the

question raised is a question of law

apparent on the basis of the facts

disclosed, this Court should not

refuse to exercise its discretion in

entertaining such writ petition simply

on the ground of existence of

alternative remedy since the remedy

herein is "most specific, efficacious

and adequate and speedy. He then

contends that no disputed question of

fact is involved which requires

determination through evidence and

as such this Court can very well

entertain the writ petition in order to

determine the question of law raised

as to whether the Clause L-2-12 of he

Standing Order can be resorted to

when the workmen are on strike may

be illegal. His further contentjon was

that the amendment in Writ Petition

No. 36071 of 1995 was though under

challenge in Special Appeal but no

interim order has since been granted

nor further proceedings of the said

writ petition has been stayed by the

appellate court, therefore, it is open

to this Court to proceed with the writ

petition. That apart even if there

could be any bar in respect of

amendment challenged in appeal in

respect of Writ Petition No. 36071 of

1995 but the same cannot have any

impact on the amendment sought to

be incorporated in Writ Petition No.

4043 No. 1996. The order allowing the

amendment in this Writ Petition (Writ

Petition No. 4043 of 1996) has not

been challenged and when the

amendment was allowed no objection

was taken to this extent and as such

the objection taken in course of

argument cannot be resorted to

particularly when no objection was

taken to the fixing of the case for

admission and disposal which was

made clear by the Court to the

counsel and who had participated in

the argument and had taken this

objection as one of the limb of the

argument and not an objection to the

every fixing of date of hearing and/or

disposal of the writ petition. He next

contends that the Standing Order

even though may not have statutory

force, if it affects the right of the

workmen and operate as an unfair

labour policy as has been held by the

Apex Court in its various decisions. In

that event such vires can very well be

challenged in writ proceedings even

though the clause is one of the

Standing Order admittedly which has

no statutory force. His further

contention was that the Lucknow

Bench decision in Writ Petition No.

2317 of 1996 could have operated

only against the individual workmen

Anand Prakash and not against the

rest. Neither against his Union. But

then the said decision having not

been on the merit of the case and the

question raised hereby having not

been decided and the Lucknow Bench

having refused to exercise its

discretion holding the writ petition as

not maintainable simply on the

ground of alternative remedy, the

principle of res judicata cannot be

attracted. He then contends that the

Union is a registered union and as

such capable of representing its

member workmen. Therefore, the writ

petition through the Union is very

much maintainable. He contends that

the Registration of the Union under

the Trade Union Act is sufficient, even

If it may not be recognised by the

Corporation. He further contends that

even if the Union is not registered

under the Trade Union Act still then

the Union representing a body of

workmen is capable of espousing the

cause of its members for collective

bargain which is otherwise

permissible in industrial

Jurisprudence and as such the writ

petition is maintainable.

8. On merits, learned counsel for the petitioner contends that the Corporation had admitted the workmen to be on strike though allegedly on illegal strike and therefore, the strike having emanated from the means and process for collective bargain accepted in the Industrial jurisprudence the workmen cannot be said to be absent within the meaning of the said Standing Order (L-2-12). It is not abandonment of service but rather a step to enforce their demand which can never be treated to be an absence within the meaning of the Standing Order. If such an interpretation is arrived at it would be counter productive to the accepted principle propounded

through various interpretation given by the High Courts and the Apex Court and demolish one of the best hammer in the hands of the workmen to resort to collective bargaining for the fulfilment of their demand which is otherwise weak but becomes capable of confronting when the employees are collected together against the mighty employer. On these grounds he contends that the writ petition should be allowed and the orders should be quashed and all consequential benefits should be given to them.

9. Both the learned counsel had cited various decisions and had elaborated their respective argument during the course of hearing of the case on diversive dates.

10. I have heard learned counsel for the parties at length on all the dates whenever the matter was fixed for hearing and had permitted the counsel to exchange notes and arguments and put them on record to be of assistance to the Court. Brief notes and arguments were thus exchanged.

11. Admittedly, in the case of Rajasthan State Road Transport Corporation (supra), it was held that the certified Standing Orders do not have any statutory force. This question is now a settled principle of law. Therefore, the action taken under the Standing Order cannot be maintainable to writ jurisdiction is a proposition which cannot be disputed. But the question has to be decided in the context of the facts and circumstances of each case depending on the characteristic of the respondents against which relief is being sought.

12. In the present case, it is not disputed that the respondent Corporation is a State within the meaning of Article 12 of the Constitution and as such is amenable to writ jurisdiction. Even if a State may discharge statutory obligation as such State at the same time it may discharge non-statutory obligation as such State. But then when the respondent Itself is a State, the Court may not like to interfere when particularly adequate alternative

remedy in respect of its discharge of non-statutory duties is available but when determination of question of fact is not involved, the Court in its discretion may entertain such writ petition in writ jurisdiction since alternative remedy is not an absolute bar because of the reason that a State even when discharging non-statutory duties by reason of its being a State is amenable to writ jurisdiction. When the Corporation is amenable to writ jurisdiction on account of its characteristic as a State, its non-statutory discharge of function can also in some circumstances be challenged in a writ Jurisdiction. Therefore, the first preliminary objection taken by the respondents stands overruled.

13. The second objection with regard to alternative remedy is also a settled proposition of law. This Court as well as other High Courts and the Apex Court had repeatedly held that alternative remedy is a ground for refusal to exercise discretion by the High Court under Article 226 of the Constitution but is not an absolute bar. It depends upon the facts and circumstances of the particular case where this Court will exercise its discretion despite the availability of alternative remedy. The considerations for skipping over the alternative remedy are held to be the facts that there is no dispute of material question of fact and no enquiry or investigation into facts is Involved or called for and on admitted or uncontrovertible or Irrefutable facts, ex facie the impugned action is demonstrated to be without jurisdiction, null and void and further where the matter is entertained for consideration by this Court and kept pending for a long period, the relegating of the petitioners to the alternative remedy for the redressal of the grievances in such case will not be a proper exercise of discretion envisaged under Article 226 of the Constitution of India. In the case of Bank Employees Union v. District Cooperative Bank Ltd., 1992 (1) UPLBEC 159, learned single Judge of this Court has held that it has to be determined on facts of every case as to whether a petitioner should be

relegated to the alternative remedy or he can be permitted to assert his right in the proceedings under Article 226 of the Constitution of India, emphasising that there may be circumstances where inspile of the existence of an alternative remedy a writ petition can be entertained and decided on merits.

14. In the case of Jai Kishun and others v. V, P. Co-operative Bank Limited. Lucknow and others, 1989 (2) UPLBEC 144, a Division Bench of this Court has observed that if an order is null and void, it has no existence in the eyes of law and for this reason an alternative remedy would be no bar in enlertaining a petition under Article 226 of the Constitution of India. The Division Bench in the said judgment had drawn Inspiration from the view taken by the Apex Court in the case of Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others, AIR 1987 SC 2186 : 1987 (1) UPLBEC 731, where the impugned order was found to be a nullity. The Division Bench of this Court In the case of Jai Kishan (supra) had observed that if an order is void and the petition does not Involve controversial questions of facts the High Court may not refuse to exercise its jurisdiction and that too after the writ petition was kept pending for considerable period, which view is supported by the ratio decided in the case of Hriday Narain v. Income Tax Officer, Bareilly, AIR 1971 SC 33. The decision In the case of U.P. Vidyut Mazdoor Sangh, Lucknow and others v. U. P. State Electricity Board, Lucknow and others, 1997 (2) UPLBEC 1295, has taken indentical view while referring to the Full Bench decision in the case of Chandrama Singh v. Managing Director, U. P. Co-operative Union, Lucknow and others, 11991) 2 UPLBEC 898, where it was laid down as to when in which circumstances alternative remedy should bar the exercise and discretion of the High Court under Article 226 of the Constitution. Relying on the decision in the case of Shailendra Singh and others v. National Thermal Power Corporation and others, 1986 UPLBEC 691. another learned single Judge in

the case of Suresh Chand Gupta v. State of U. P. and others, 1993 (66) FLR 228, had taken the same view.

15. In the present case, it is apparent on the basis of the material that this case does not involve investigation of facts nor it requires determination of disputed question of fact. It is only a question as to whether the impugned order is void and or a nullity. It does not require examination of any witness to arrive at the question raised as is apparent from the materials as would be discussed hereafter. Then again since this writ petition was moved in 1995. a long time has lapsed today when the matter is being finally decided in 1999. Thus these petitions come within the scope and ambit of those situation in which alternative remedy cannot stand in the way of exercising discretion by this Court. Therefore, the second preliminary objection taken by the respondents are hereby overruled.

16. The third preliminary

objection with regard to pendency of the Special Appeal No. 212 of 1996 against the leave granted on 18.9.1996 to amend the writ petition Incorporating the question of vires of the said Standing Order (L-2-12) in Writ Petition No. 36071 of 1995 precludes this Court from allowing similar amendment on 17.7.1998 in Writ Petition No. 4043 of 1996 and debars this Court from proceeding with the hearing or both the cases since connected together may now be examined. Admittedly, respondents have not been able to obtain either stay of the operation of the order dated 18.9.1996 granting leave to amend nor they were able to obtain any stay of further proceeding. Mere filing of an appeal cannot operate as stay of the operation of the order appealed against nor stay of further proceeding during the pendency of the appeal. That is why the provision for making an application for obtaining Interim order has since been incorporated in Order XLI, Rule 5 of the Code of Civil Procedure prescribed that an appeal shall not operate as a stay of proceeding or a decree or order appealed from except

so far as the appellate court may order stay of execution of such decree, the execution of a decree cannot be said to be stayed by reason of only an appeal having been preferred from the decree. Rule 10, Chapter IX of the Allahabad High Court Rules. 1952 in Clause (v)- (b) prescribes that if an appellant desires to file an application for interim order, he shall along with the application file an affidavit of service of copy of application on the counsel for the opposite parties in the Court of learned single Judge or to the opposite party if unrepresented through registered post with acknowledgment due except in the case of State Government represented by the learned standing counsel. It provides various other procedure after compliance whereof in terms of Clause (xv) final orders on the application for interim order is to be passed. Thus, the said procedure also adopts the principle enunciated in Order XLI. Rule 5 of the Code. Admittedly the provision of the Code does not apply to a proceedings under Article 226 by reason of Section 141 of the Code but the principle may be applied in deserving cases. Mere filing of the appeal or pendency of the appeal would neither operate as stay of the operation of the order appealed against nor it would operate as stay of further proceeding out of which the appeal arises. Then again pendency of the appeal against one order passed in one writ petition cannot have any impact on another writ petition passed on different cause of action though identical question may be involved. There is no bar to decide such question. Had it been a case that the appeal was argued and the appellate court is in seisin of the matter and a decision is expected within a reasonable proximity of time then judicial propriety would demand that the single Judge should await the decision of the appellate court. It has not been pointed that by the learned counsel for the respondents that the matter was heard or the appellate court was in seisin of the matter and the decision is expected within reasontible proximity, On the other

hand, the respondents have not been able to obtain interim order in the appeal and there is no statement even from the Bar that the appeal is expected to be taken up in the near future. In such circumstances, it would not bar the learned single Judge either to allow the amendment in another writ petition nor to proceed with the determination of the proceeding which has not been stayed. On the basis of such amendment, the operation whereof has not since been stayed.

17. But then as discussed hereafter, it is not necessary to go into the question of vires in view of my observations on that point and as such the question of amendment cannot at all stand in the way of admission or disposal of the present cases since both the learned counsel had addressed this Court on all questions.

18. The question with regard to the vires of the said standing order as raised by the petitioner may not be gone into in the facts and circumstances of the case. Therefore, the preliminary objection raised on behalf of the respondents that the vires of the standing order cannot be gone into in a writ proceeding since the standing order has no statutory force is not necessary at all to be gone into because of view which is being taken hereafter. Whether the vires of the standing order could be gone into in the absence of any statutory force in the standing order is not germane to the issue involved in the present case. Inasmuch as in the present case it is to be examined as to whether the order impugned is void or not or in other words whether the termination of the services under Clause L-2-12 of the Standing Order could be sustained or not. If it is found that the order is void and cannot be sustained, in that event, it would be wholly academic to enter into such question for the purpose of determining the issue involved in the present case. In such event, this Court would not require to be called upon to decide such question, therefore it is necessary to go into the merits of the case which I will do at a

later stage. Therefore. this preliminary objection may not be gone into at this stage and be overruled to the extent as would be the outcome of the case on merit. In case it is found that the order of termination could be sustained and the same is not void, then this Court would be called upon to enter into the question of vires and not otherwise.

19. The next preliminary

objection that was raised was that the individual workman had not come and the Union being an unregistered one could not maintain the writ petition on behalf of the individual workman. In paragraph 2 of the writ petition, it has been pleaded that the Union is registered under the Trade Unions Act. 1926 bearing registration No. 7932. In paragraph 6 of the counter-affidavit, the said statement has been denied that no document has been filed to show that the Union was a registered one and that it was not a recognised Union. On the face of such dispute raised in the counter-affidavit. It does not appear from the record that the Registration Certificate is produced nor in the rejoinder-affidavit its claim is asserted to such an extent. Thus, it is not possible to conclude that the Union is a registered one. In these circumstances, let us examine as to whether the Union even If not registered under the Trade Union Act or unrecognised by the employer could espouse the cause of the workmen.

20. Industrial jurisprudence is based on class-action or representative litigation. The enactment, as it stood, did not permit any Individual dispute unless espoused by a body of workmen or union. It. therefore, became necessary to amend the legislation and in corporate Section 2A to bring within the ambit of such dispute even an Individual dispute in certain circumstances as indicated in Section 2A though it may not be espoused by the Union or a body of workmen. The concept of class-action or representative litigation as understood in the common law has been deviated from by reason of a

special legislation in the form of Industrial Disputes Act where collective bargain Is permitted. The concept was evolved in order to enable the poor workmen to unite together and press their demand collectively so to confront a powerful employer, Unless the workman collectively confronts the employer. It may not be able to push through its fight against a mightier adversary. The industrial dispute even If referred to under Section 2A, it does not require that it has to be proceeded with the support of the union. Section 2A is In fact an enabling section, which permits even an individual workman to raise an industrial dispute even though not supported by the union. But it does not preclude the Union to support an individual dispute under Section 2A. When it comes to a long drawn fight and requires approaching of a higher forum, the poor employees may not afford to approach this Court and bear the expenses and thus it satisfies the concept of little Indian to approach collectively to seek a class action. While it can do so collectively or by themselves, there cannot be any justifiable reason to dissuade them from approaching the Court collectively taking shelter of a union or through the Union. Similarly, it also does not prevent a Union to take up the cause and espouse it for one or a!l those individual workmen collectively in order to discharge its obligation as provided in the object of the formation of the union Itself. The Union is formed only to espouse the cause of Its members or the employees of the concerned industry. If it dissuades from such action and refuses to espouse the cause of its member or employees, in that event, the Union would fail to discharge its one of the obligation. Thus, tt Is open to the Union to espouse the cause of the individual workmen collectively for the purpose of supporting the cause of individual workman.

21. The above view was taken by me in the case of U.P. Bank Employees' Federation v. Union of India, and another, Civil Misc. Writ Petition No- 45884 of 1992. disposed

of on 12.3.1999. In the present case, admittedly it is a common order by which all the. poor workmen have been relieved of from the service which they have sought to espouse through writ jurisdiction in this Court as little Indians who can be represented in a writ proceeding through an interested body who is not a busy body as has been held in various decisions of the Apex Court relating to public interest litigation. The present case is little more stronger of facts to lay a foundation in support of the Union's eligibility to represent the cause of the individuals since in the industrial jurisprudence it is permissible. Therefore, I do not find force in the submission of Mr, Rajvanshi with regard to the said question. Inasmuch as, it is not necessary for espousing cause of individual member, that the Union is required to be registered under the Trade Unions Act or is required to be recognised by the employer. Even without being registered and without being recognised as a collective body of workmen, the Union is authorised, entitled and eligible to represent the cause of individual workman in the form of collective bargain between the workmen and the employer and if it is so, in that event there cannot be any Justifiable reason to deny them the same right when it seeks to invoke writ jurisdiction for its individual member through the Union.

22. We may now examine the next contention that the same very order dated 30.10.1995 was challenged by means of Writ Petition No, 2317 of 1996 by one Sri Anand Prakash, one of the workers whose case is also sponsored in this proceedings and the said writ petition having been dismissed on 9.5.1996, this writ petition challenging the same order is barred by the principle of res Judicature. Admittedly, the principle of res Judicature is not attracted by reason of Section 141 of the Code of Civil Procedure to a proceeding under Article 226. But the said principle being a principle for preventing repeated determination of the same issues between the parties represented as a salutary provision for judicial propriety, is very much

attracted and adopted by the Court as applicable to a writ proceeding as well with equal force. Had it been the case of Anand Prakash alone, it would have definitely been a case of res Judicata. One of the principle on which the principle of res judicature is founded is that the res is decided and determined between the same parties or between the parties claiming under one or the other of the same parties involved in the proceeding. The other question that is relevant for the purpose is that the issue has to be decided. Admittedly, Writ Petition No. 2317 of 1996 was dismissed on the ground of alternative remedy. From the judgment dated 9.5.1996 in the said writ petition produced before this Court, it appears that the Court declined to exercise its discretion in respect of an individual case purely on the ground of existence of alternative remedy. Thus, there was no determination or decision of the issue involved. Unless the decision or the Issue involved is decided, the same cannot be held to operate as res Judicature between the Union and the Employer when the Union was not a party in the said proceeding and the individual represented by the Union except one Anand Prakash were also not parties to the said proceedings. Admittedly, Anand Prakash could not have been permitted to challenge the said order Individually after the order dated 9.5.1996 was passed. He is thus precluded from espousing cause as an individual before this Court. But when all the workmen accepting him had joined together and are being represented by the Union, the said order could very well he challenged without attracting the mischief of the principles of res judicature. Even if Anand Prakash is one of the workers represented by the Union, the writ petition cannot be hit by the principles of res judicature, since he could very well be excluded from the Impact of the said order. But then in the present case, if the issue is determined by this Court since the same is a question of law, it would be a binding precedent on the Tribunal who would be trying the issue through the alternative remedy by the said

Anand Prakash and the said dispute by the Tribunal or the Labour Court is to be determined in (he light of the decision in this case in one or the other way. Therefore, even if Anand Prakash is precluded the impact of this decision would have an effect in the dispute between him and the employer before the Industrial Court or Labour Court where he ought to have persuaded his remedy. Thus exclusion of the case of the said Anand Prakash would be an infructuous exercise and mere formality. The said Individual workman is admittedly belong to the weaker section who has to fight an uneven battle between two unequals. In that event a weak workman would be required to fight mighty employer. The outcome of which should be covered by the decision in this Court. Therefore, in view of the peculiar facts and circumstances of the present case, since the issue was not determined and decided the said Anand Prakash cannot be precluded from the benefit of this decision if his case also being espoused by the Union merely on a technical ground causing undue hardship in the light of the impact of this order. As discussed above, if he is driven to the Labour Court or the Industrial Tribunal causing him, to suffer unnecessary agony going through an empty formality for the reason of obtaining an order one or the other is such formal proceeding on which the decision in the case would be a binding precedent, it would amount to taking too technical a view. Therefore, on this ground alone that one of the individual workman had at one point of time had challenged the said order and was unsuccessful only because of the Court had taken a view that it ought not to entertain the writ petition in view of existence of adequate efficacious alternative remedy, this writ cannot be thrown away. Therefore. I am unable to pursuade myself to agree with this preliminary objection raised on behalf of the respondents as discussed above and as such the said preliminary objection is overruled.

23. In the case of K.N. Singh and others v. State of U. P. and

others. (1999) 1 UPLBEC 368, this Court in a full Bench had held (hat when the Court had expressed its clear view that it had not adjudicated on the submission made by the two direct recruits, the judgment of Lucknow Bench on the mere reading of it may not be read as res judicata barring a writ petition for that very relief which was not adjudicated and not decided by the Lucknow Bench. When there is no dictum on the merits of the case between the parties, the same cannot operate as res judicata.

24. Now we may examine the preliminary objection raised by the respondents relating to the question that while determining this question, this Court is required to enter into determination of disputed question, of fact. Inasmuch as in the present case, it has been contended on behalf of the respondents that it is necessary to determine as to whether the workmen were on strike or were absent unauthorisedly. The fact remains that in the counter-affidavit. the respondents have made out a pleading that no notice of strike was given to the employer and, therefore, they were absent unauthorisedly. From the materials disclosed, it appears that there are some correspondence between the authorities of the Labour Department as prescribed in the Industrial Disputes Act and the employer on the basis of certain questions raised by the Union of the workmen. The substance of the case made out in the pleadings in the counter-affidavit and as argued by the counsel in Court was that the workmen were on unauthorised strike. Therefore, the employer is not supposed to recognise the strike and they are free to treat them as unauthorised absent.

25. The Industrial Disputes Act in Chapter V while dealing with strike and lockouts in Section 22 prescribes that no person employed in a public utility service shall go on strike in breach of contract without giving the employer, the notice of strike within six weeks before striking, within 14 days of giving such notice or before the expiry of the date of strike specified in such notice or during the

pendency of any conciliation proceeding before a conciliation officer and 7 days after the conclusion of such proceedings. Whereas in respect of Industrial establishment other than public utility service are prohibited from going on strike under Section 23 in breach of contract during pendency of the conciliation proceeding before a Board and 7 days after conclusion of such proceeding or during the pendency of proceeding before the Tribunal, Labour Court or the National Tribunal and two months after such proceeding or during the pendency of arbitration proceeding before arbitrator and 2 months after the conclusion of such proceedings whether an enquiry under sub-section (3A) of Section 10A is published or during any period in which the settlement or award is in operation in respect of any of the matters covered by the settlement or award.

26. Thus notice of strike is necessary only when the employees are employed in a public utility service. Public utility service has been defined under Section 2(n) of the said Act as follows :

(n) "public utility service" means-

(i) any railway service (or any transport service for the carriage of passengers of goods by air) ;

(ia) (any service in, or in connection with the working of. any major port or dock ;)

(ii) any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends ;

(iii) any postal, telegraph or telephone service :

(iv) any industry which supplies power, light or water to the public ;

(v) any system of public conservancy or sanitation.

U. P. industrial Disputes Act defines public utility service as :

(i) Any section of an industrial establishment, on the working of which the safety of the establishment or the workmen employed therein depends ;

(ii) any Industry which supplies power, light or water to the public ;

(iii) any system of public conservancy or sanitation :

(iv) any industry or undertaking which the State Government may. if satisfied that public emergency or public Interest so requires, by notification in the Official Gazette, declare to be a public utility service for the purposes of this Act, for such period as may be specified in the notification ;

Provided that the period so specified shall not. in the first instance, exceed six months but may. by a like notification, be extended from time to time, by any period not exceeding six months, at any one time, if in the opinion of the State Government public emergency or public Interest requires such extension.

27. It is apparent that the Industrial establishment of the respondent does not come within the purview of any of clauses (i) to (v). The counsel for the respondents has not pointed out that it is one of the industries specified In the 1st Schedule of the Industrial Disputes Act or under the U. P. Industrial Disputes Act. In the absence of any such material, it is not possible to hold that any such notice as contended by the respondents is at all necessary.

28. Be that as it may even If a notice is required in that event, it would be a illegal strike within the meaning of Section 24 of the Industrial Disputes Act. Inasmuch as if it is a public utility service, then a strike without notice would be a contravention of Section 22. It is not alleged on behalf of the respondents that there were any violation of Section 23 or any of the other conditions except clauses (a) and (b)

of Section 22. Now whether the strike was illegal or not is a question of determination by the authorities. This question cannot be gone into by the authority under the Timely Payment of Wages Act. But then the Industrial Disputes Act provides for penalty for illegal strike under Section 26 subsection (i) making a person on illegal strike liable to punishment of imprisonment for a term extending to one month or with fine extending to Rs. 50 or with both. The Industrial Disputes Act while providing punishment for illegal strike, it had not mentioned in the provision to the extent that the period of illegal strike would be a period of unauthorised absence inviting consequence therefor. It has not provided that because of such illegal strike, the relationship of employer and employee would cease or the contract of service would cease.

29. In case the provision relating to Clause L-2-12 of the Standing Order is applied in that event, admittedly the workmen shall be deemed to be in service and the contract of employment shall be deemed to be subsisting. One single situation cannot be treated in two ways. Namely, on the one hand it would attract penalty under Section 26. at the same time it would expose the workmen to the penal consequence of discharge under Clause L-2-12 of the Standing Orders.

30. The very provision for penalty under Section 26, shows that a legal strike would not bring about any other consequences. It would be only consequence under Section 26 that would be attracted. Thus admittedly a person on strike may be legal or illegal can never be treated to be absent. If he is treated to be absent, in that event the very concept of strike itself would lose its significance and hit at the root of the principle of collective bargaining permitted under Industrial jurisprudence.

31. Strike has been defined in Section 2(q) to mean cessation of work by a body of persons employed in any industry acting in combination or concerted refusal or a refusal

under a common understanding of any principle of persons who are or even so employed to continue to work or to accept employment. Therefore, even if the strike is illegal, it would be a strike within the definition of Section 2(q) of the Act. it cannot be an absence. A cessation or refusal to work cannot be treated as absence. Strike having been accepted as an armoury or weapon at the hands of the employees/workmen and has been recognised as a mode of collective bargain even if illegal cannot be equated at par with unauthorised absence. If it ts so treated it would be wholly contrary to conception accepted in Industrial Jurisprudence, Such conclusion would in fact destroy the whole armoury of collective bargaining through strike and accepted mode or means or vehicle enabling the workmen to put-forth their demand. A strike if legal would not be an absence, if illegal would attract penalty under Section 26 is the only difference between a legal and illegal strike.

32. The Industrial Disputes Act having not conceived of or provided for any other conception, it is not open to this Court to introduce or import a meaning which is against the concept of Industrial jurisprudence. If such an Interpretation is given in that event, this Court will be trenching upon the domain of legislation which is otherwise impermissible. In the garb of interpretation, the Court cannot legislate. Such an interpretation in fact would Introduce a further clause to Section 26 to the extent that notwithstanding the punishment a person on illegal strike would be deemed to be an unauthorised absence. Inasmuch as when the strike ends, the period of strike is governed by virtue of the settlement arrived at between the parties or by virtue of any award or arbitration or conciliation as the case may be. In such period, the wages may or may not be payable at all or may or may be payable in part but the said period can never be treated to be a period of unauthorised absence inviting application of Clause L-2-12 of the Standing Orders for cessation of

employment. Inasmuch as the said clause treats the workmen to have abandoned the job. The cessation of work or refusal to work in combination or in concert or under common understanding by a number of persons going on strike legal or illegal is not an abandonment. If the workmen have abandoned their work, there would not have been necessity to go on strike or dharna. If the workmen had abandoned his service, in that event he would not have been on strike or dharna. On the other hand, in protest they were ceasing work or refusing to work though they had not abandoned the job in order to put-forth their demand. Thus continuation of strike, if It is illegal, is not an abandonment but only a cessation or refusal to work within the strike period. Inasmuch as after the strike is over, the workman joins his job. It is with a view to continue in service with the condition demanded, for which strike was resorted to, is the aim and object of going on strike. The purpose for going on strike is not an abandonment of job but is an enforcement of their right or demand in respect of the condition of service for the job which they never to intend to abandon.

33. In the admitted facts as emerging, it is not necessary to enquire at to whether the strike was legal or illegal, on the face of the materials that the workmen had ceased work or refused to work in support of their demands which according to the employer was an illegal strike. Thus in the facts and Circumstances as indicated above, it is not a question of determination of disputed facts but is a simple question of law as to whether workmen on illegal strike could be exposed to Clause L-2-12 of the Standing Orders treating them to have abandoned the Job or in other words whether resorting to illegal strike would amount to abandonment of service attracting the mischief of Clause L-2-12 of the Standing Order.

34. Thus, this preliminary objection with regard to the maintainability of the writ petition on the ground of alternative remedy cannot be sustained. Inasmuch as in

the present case, the question having not been involved determination of disputed question of fact and being a simple question of law, the discretion to invoke writ jurisdiction cannot be refused on the ground of alternative remedy through a forurn where disputed question of fact could be better resorted to.

35. In the case of Narendra Pal Gahtot v. State of U. P. and another, 1994 (1) UPLBEC 51, the learned single Judge of this Court had held that the impugned order found apparently from the face of the record to have been passed in violation of principle of natural justice, bar of alternative remedy should not be given weight as it will not serve any useful purpose if the petitioner is relegated to alternative remedy. In such circumstances the writ petition should be entertained keeping aside the bar of alternative remedy.

36. Thus, all the preliminary objections having been answered as hereinbefore. Now we may enter Into the question of merit of the case. Clause L-2-12 provides that "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 13 consecutive days, he shall be deemed to have left the service 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 off the rolls.

37. The reading of the above clause shows that the said clause is applicable on certain conditions. The first condition is that the workman who remains absent without leave or in excess of the period of leave sanctioned or extended for more than 13 days. Therefore, the primary criteria is that a person has to remain absent from duty without leave and secondly for 13 consecutive days. If both these two conditions are satisfied, only then the above clause would be attracted to the extent that such person shall be deemed to have left service on his own accord without notice and thereby terminating his contract of service. In consequence

thereof, his name is liable to be struck off the rolls.

38. Thus, the absence may not be without leave or in excess of leave sanctioned or extended. Admittedly, in this case no leave was either asked for or sanctioned nor was there scope of any extension of the leave sanctioned. As observed earlier, the allegations of the employer was that the workmen were on Illegal strike. In order to resort to strike, one is not required to apply for leave and for remaining on strike, no leave is required to be sanctioned. 'Absence' means state of being away from a place or the time or duration of being away. (A New Shorter Oxford English Dictionary Edition, 1993). Thus 'absence' means to keep oneself away which is completely different from cessation of work or refusing to work. Cessation or refusing is abstention meaning abstaining from or refraining from doing the work. Strike is a protest by abstaining or refraining from the work or ceasing or refusing to work. It is something more than absence coupled with a protest with an active state of process to refuse to work while absence is a passive means of keeping away from work. That according to the above clause with or without leave, expression deemed to have left the service means leaving of a service which means abandonment of service. According to New Shorter Oxford English Dictionary, same edition, leave which is the present tense of left means stopped doing or resigned from a job. Terminating one's relations to or connection with a place, person, institution, etc. abandoned. The word abandon means to give up or renounce, desert or leave behind the action of abandon is an abandonment which means relinquishment of an Interest.

39. When a worker resorts to strike, he does not abandon his job nor he gives up his job. On the other hand, he very much sticks to his job but as a manner of protest he refuses or refrains from doing the work. Thus by no stretch of imagination, resorting to a strike by workmen cannot be termed as an absence

within the meaning of the above clause nor it would mean leaving of the service and thereby terminating the contract of service. A workman does not resort to work to leave his service or to terminate his contract of service. On the other hand, it is for demanding his dues out of the contract of service, a workman resorts to strike. If resorting to strike is given the meaning of absence of leaving of service or termination of service in that event, the. most important mode of collective bargain would perish. Such an interpretation cannot be conceived of and be adhered to. The said clause cannot be applied when a workman is on strike. Though it could be applied if the workman remains absent even after the strike is over and he is permitted to Join. But it cannot have any application during the period of strike whether legal or illegal.

40. A provision has to be interpreted in the context in which it has been used. This clause is a part of the Standing Order which deals with leave and holidays. Strike is definitely not a leave. Illegal strike may be a misconduct but cannot be a leave. The said clause in the chapter dealing with leave cannot be applied to a situation outside the scope of the said chapter dealing with leave. The question of strike cannot be brought within the scope and ambit of leave and as such its application cannot be extended to a situation when the workmen are on strike. Then again an interpretation is to be given according to the purpose and object for which it is inserted. The purpose and object is to prevent a person from misusing leave or overstaying of leave resorting to strike fs neither misuse of leave nor overstaying of leave. Standing Order does not provide for any provision as to how the question of strike is to be dealt with.

41. The resorting to strike also cannot be taken to be a misconduct unless the action of striking workmen is shown to be an act of misconduct either minor or major defined in Chapter (P) of the said Standing Order. There are 48 major and 20 minor misconducts. None of which

includes resorting to strike as misconduct. It is not alleged that by reason of such striking workmen had committed any act of misconduct either minor or major as prescribed in Chapter (P) of the Standing Order, If it is a misconduct then the disciplinary proceeding is to be followed according to the provision of the Standing Orders. But the same cannot be treated to be an absence without leave or overstaying a leave within the meaning of Clause L-2-12 of the Standing Order. Therefore, there cannot be a question of striking their names off the rolls even though on illegal strike.

42. Therefore, in the present case, there could not be any scope for terminating the service under the said clause in the facts and circumstances of the case. The said order has thereby been passed beyond the scope and ambit of the said Standing Order. Thus, the order is not an order within the meaning of Clause L-2-12. It is an order of termination simpliciter. though sought to be dressed under the provision of the said clause of the Standing Order.

43. If it is not an order within the scope and ambit of an order under Clause L-2-12 of the Standing Order or any other provision thereof. In that event such action by an authority within a meaning of Article 12 is surely an act in violation of the principles of natural justice and equity undertaken by an Instrumentality or agency of the State affecting the legal right as well as fundamental right with regard to the right to livelihood which is recognised as a right to live within the meaning of Article 21 and as such amenable to writ jurisdiction.

44. Then again the order impugned has no-where specified as to from which date and to what duration the workmen were alleged to be absent. It has also not specified that the absence was for a period of more than 13 consecutive days. In the absence of any specification in the order, even assuming but not admitting that the order is an order within the meaning of Clause L-2-12, could not be sustained.

45. Shri Rajvanshi ably assisted by Shri Arun Gupta had contended that since the conditions of service of the workmen are governed by the Standing Order which do not have statutory force as held In the case of Rajasthan State Road Transport Corporation (supra), this Court cannot intervene. But that question would be different. The respondent here is a State within the meaning of Article 12. The respondent having been a State within the meaning of Article 12 as Instrumentality and agency of the State has made the difference.

46. In Bagal Kot Cement Company Ltd. v. R. K. Pathan, AIR 1963 SC 439, the certified Standing Orders are held to constitute the statutory terms of employment. In Buckingham and Carnatic Company Ltd. v. Venkatiah, AIR 1964 SC 1272, it was held that the certified Standing Orders represent the relevant terms and conditions of service in a statutory form. They are binding on the parties at least as much, if not more as private contracts embodying similar terms and conditions of service. In Workmen v. Dewan Tea Estate, AIR 1964 SC 1458, it was held that the Standing Orders become part of the Statutory terms and conditions of service and they will govern the relation between the parties. Whereas in the case of D.K. Yadav v. J.M.A. Industries Ltd., 1993 SCC (L&S) 723, it was observed that the certified Standing Orders have statutory force which do not expressly exclude the application of the principles of natural justice. While discussing the above decisions, the Apex Court in the case of Rajasthan State Road Transport Corporation (supra), had observed as follows :

"It is evident from a perusal of the above decisions that while the first decision referred to the certified Standing Orders as constituting "the statutory terms of employment", they were described as "conditions of service in a statutory form" and as "binding on the parties at least as much, it nor more, as private contracts embodying similar terms and conditions of service" in the second

decision. The third decision, reiterated the holding in the first decision. So far as the two last mentioned decisions are concerned. it is obvious, they 'only purport to set out the purport of the earlier decisions. Vaidlalingam. J., used the very expression "part of the statutory terras and conditions of service", while K. Ramaswamy, J., stated more emphatically that "certified Standing Orders have statutory force". It must, however, be said that in the decision rendered by Ramaswamy, J., the question as to the nature and character of the certified Standing Orders did not arise for consideration, the said observation was made in another context. The consensus of these decisions is : the certified Standing Orders constitute statutory terms and conditions of service. Though we have some reservations as to the basis of the above dicta as pointed out supra, we respectfully accept it both on the ground of stare decisis as well as judicial discipline. Even so, we are unable to say that they constitute "statutory provisions within the meaning of the dicta in Sukhdev Singh where it was held : (SCC p. 447, para 67).

"The employees of these statutory bodies have a statutory status and they are entitled to declaration of being in employment when their dismissal or removal is in contravention of statutory provisions. 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."

47. Thus even in the said case, the Standing Orders has not been elevated to the status of statutory provisions or to consist of statutory force. But the Apex Court had accepted that the Standing Orders constitute statutory terms and conditions of service while accepting the same on the ground of stare decisis as well as Judicial discipline. A distinction has been made by the Apex Court that it is one thing to say that they are statutorily imposed conditions of service and altogether different to say that they constitute statutory provision themselves since the Standing Order is neither a statutory provision nor a statutory force. Therefore, it can be said that no suit would be necessary nor a reference would be. But then even though there may be alternative remedy but the Court can intervene in a circumstance where no disputed question of fact is involved and whether there are extraordinary reasons to skip ordinary remedies.

48. In the present case, this Court is required to enter into any disputed question of fact on the basis of the material as discussed above, it is a question of law as to whether a person on strike even though illegal could be treated to be absent and had abandoned service. At the same time. service of certain group of employee had been dispensed with on the face of it nothing else is to be determined. It would be torturous and denial of justice to the poor workmen to drive them out of this Court for obtaining their remedy by raising an Industrial dispute. This situation forms an exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the petition to alternative remedy. Though the hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual manner but yet in this case, the remedy provided here is surely more than efficacious and adequate than the remedy provided under the Industrial Disputes Act. In my view, this is a case fit for intervention under Article 226 in the extraordinary and exceptional facts and circumstances of the case where the

downtrodden are being deprived of their right In colourable" exercise of power by an authority within the meaning of Article 12.

49. In the case of Uptron India Limited v. Shammi Bhai and another, JT 1998 131 SC 47, it was held that it was now well settled that the services of a permanent employee whether employed by the Government or Government Company or Government Instrumentality or Statutory Corporation or any other authority within the meaning of Article 12 cannot be terminated abruptly and arbitrarily either by giving him a month or three months notice or to pay in lieu thereof or even without notice notwithstanding, that there should be stipulation to that effect either in the contract of service or in the certified Standing Orders.

50. In the case of Basudeo Tiwary v. Sido Kanhu University and others, 1998 18) SCC 194, it was held that conferment of absolute power to terminate the service of an employee is antithesis of fair, just and reasonable treatment. In order to keep such wide power within bounds of reasonableness, requirement of audi alteram partem is read into statutory provision which provided for termination of service at any time without notice.

51. In the case of L. Robert D.' Souza v. Executive Engineer, Southern Railway, AIR 1982 SC 854. it is held that :

"It is. therefore, the settled law that the expression 'termination of service for any reason whatsoever' in the definition of the expression 'retrenchment' in Section 2(oo) of the Act covers every kind of termination of service except those not expressly included in Section 25F or not expressly provided for by other provisions of the Act such Sections 25FF and 25FFF. Two things thus emerge, Firstly, that the decision of the Full Bench of Kerala High Court under appeal has been specifically overruled by this Court in Santosh Gupta's case, and secondly, in view of the decision in Delhi Cloth and General Mills Ltd.

case strike off the name of a workman from the rolls without anything constitutes retrenchment within the meaning of the expression 'retrenchment' in Section 2(oo). This emerging legal position alone would be sufficient for us to allow the appeal and set aside the decision of the Kerala High Court."

*****

Therefore, we adopt as binding the well settled position in law that if termination of service of a workman is brought about for any reason whatsoever, ft would be retrenchment except if the case falls within any of the excepted categories, i.e., (i) termination by way of punishment inflicted pursuant to disciplinary action ; (ii) voluntary retirement of the workman ; (iii) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf ; (iv) or termination of the service on the ground of continued ill-health. Once the case does not fall in any of the excepted categories the termination of service even if it be according to automatic discharge from service under agreement would nonetheless be retrenchment within the meaning of expression in Section 2(oo). It must as a corollary follow that if the name of the workman is struck off the roll that itself would constitute retrenchment, as held by this Court in Delhi Cloth and General Mills Ltd., AIR 1978 SC 8.

*****

It would thus appear that it is consistently held by this Court that termination of service for any reason whatsoever except the excepted categories would constitute retrenchment within the meaning of the expression in the Act.

*****

Absence without leave constitutes misconduct and it is not open to the employer to terminate service without notice and inquiry or at any rate without complying with the minimum principle of natural justice."

52. In the case of B.R. Singh and ethers v. Union of India and others, (1990) 1 SCJ 8, it has been held that :

"Counsel for TFAI also strongly contended that since the strike was illegal the workers are not entitled to any relief. We see no merit in this submission. The right to form associations or unions is a fundamental right under Article 19(1)(c) of the Constitution. Section 8 of the Trade Unions Act provides for registration of a trade union if all the requirements of the said enactment are fulfilled. The right to form associations and unions and provide for their registration was recognised obviously for conferring certain rights on trade unions. The necessity to form unions is obviously for voicing the demands and grievances of labour. Trade unions are as mouthpieces of labour. The strength of a trade union depends on its membership. Therefore, trade unions with sufficient membership strength are able to bargain more effectively with the managements. This bargaining power would be considerably reduced of it is not permitted to demonstrate. Strike in a given situation is only form of demonstration. There are different modes of demonstration, e.g., go-slow, sit-In. work-to rule, absentism, etc., and strike is one such mode of demonstration by workers for their rights. The right to demonstrate and, therefore, the right to strike is an important weapon in the armoury of the workers. The right has been recognised by almost all democratic countries. Though not raised to the high pedestal of a fundamental right, it is recognised as a mode of redress for resolving the grievances of workers. But the right to strike is not absolute under our industrial jurisprudence and restrictions have been placed on It. These are to be found in Sections 10(3). 10A(4A). 22 and 23 of the Industrial Disputes Act, 1947 (I.D. Act for short). Section 10(3) empowers the appropriate Government to prohibit the continuance of a strike if it is in

connection with a dispute referred to one of the for a created under the said statute. Section 10A(4A) confers similar power on the appropriate Government where the industrial dispute which is the cause of the strike is referred to Arbitration and a notification in that behalf is issued under Section 10(3A). These two provisions have no application to the present case since it is no body's contention that the union's demands have been referred to any forum under the statute."

53. Mr. Rajvanshi had relied on the decision in the case of Rajasthan Slate Road Transport Corporation (supra), which in the facts and circumstances of the case does not help his contention as discussed herein before. The decision in the case of Chandrama Singh v. Managing Director, U. P. Co-operative Union. 1991 AWC 1005, also does not help him since the said case in the Full Bench lays down that alternative remedy is not an absolute bar and could be skipped over if there are exceptional and extraordinary circumstances. He also relied on the decision in the case of Scooter India Ltd. and others u. Vijai E. V. Eldered, JT 1998 (8) SC 204. Mr. Gupta contended that in a case where services were terminated on account of absence without leave, the Supreme Court had refused to entertain the writ petition. But in the said case the writ petition was moved in 1989 against an order of termination dated 4th September. 1982. On the ground that the delay was unexplained as well as on the ground that the said case involved adjudication of disputed question of fact such a decision was taken. Therefore, the said decision cannot help Mr. Gupta. Since in the present case adjudication of any disputed question of facts is not called upon and that the writ petition has since not been moved after an undue delay.

54. In the result, the order dated 9th January. 1996 since published on 12th January. 1996 contained in Annexure-9 to the Writ Petition No. 4043 of 1996 and the

order dated 30th October, 1995 published on 31st October. 1995 and order dated 4th November, 1995 contained in Annexures-6 and 6A to the Writ Petition No. 36071 of 1995 are hereby declared to be void ab initio and as such non est and is liable to be quashed and is, accordingly, quashed.

55. Accordingly, a writ of mandamus declaring the impugned order dated 9th January, 1996 contained in Annexure 9 and the order dated 30th October, 1995 and 4th November, 1995 contained in Annexures-6 and 6A to the Writ Petition No. 4043 of 1996 and Writ Petition No. 36071 of 1995 respectively as void ab initio and non est do issue and a writ of certtorari quashing the order dated 9th January, 1996 contained in Annexure-9 (in Writ Petition No. 4043 of 1996) and the order dated 30th October. 1995 and 4th November. 1995 contained in Annexures-6 and 6A in Writ Petition No. 36071 of 1995 do issue. The petitioner's shall 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. 5.000 each.

However, there will be no order as

to costs.