The Constitution of India is not a statute but a fountainhead of all statutes. A workman who cannot raise individual dispute under the Industrial Disputes Act can approach the High Court under Article 226. Karnataka High Court.
Gururaj R and others vs The Union of India and others. Writ Petition 50039/2015 decided on 7 October 2020
Judgment Link:
http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/357995/1/WP50039-15-07-10-2020.pdf
Relevant paragraphs:
16.2 A bare reading of Section 2(k) of the Industrial Disputes Act would make it clear that an individual dispute would not be maintainable under the statute, which further makes it clear that an Organization or Union may maintain a dispute but the choice is of the Organisation or Union to take up the dispute or otherwise. An individual Workman does not have a right to pursue his remedy under Section 2(k) of the said Act. The only remedy for individual industrial dispute is under Section 2A of the said Act which is confined to discharge, dismissal or retrenchment or termination. Thus, the petitioners have no remedy in terms of either under Section 2(k) or Section 2A of the said Act.
16.3 It is a trite law that a citizen cannot be rendered remediless if a statute does not provide a remedy against infringement of his right. The controversy becomes maintainable before this Court in such a situation under Article 226 of the Constitution of India as “the Constitution of India is not a statute, but a fountainhead of all statutes”. The Apex Court in the case of Common Cause vs Union of India reported in (1999) 6 SCC 667, has held as follows:
“39. Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus, certiorari, prohibition, quo warranto and habeas corpus for the enforcement of fundamental rights or for any other purpose. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for “any other purpose” which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative writs for the enforcement of fundamental rights guaranteed to a citizen under the Constitution.
40. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of “judicial review”. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of fundamental rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other articles dealing with fundamental rights, every executive action of the Government or other public bodies, including instrumentalities of the Government, or those which can be legally treated as “Authority” within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the constitutional mandates.
41. In a broad sense, therefore, it may be said that those branches of law which deal with the rights/duties and privileges of the public authorities and their relationship with the individual citizens of the State pertain to “public law”, such as constitutional and administrative law, in contradistinction to “private law” fields which are those branches of law which deal with the rights and liabilities of private individuals in relation to one another.
59. The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by a catena of decisions of this Court starting from Indira Nehru Gandhi v. Raj Narain [1975 Supp SCC 1 : AIR 1975 SC 2299] to Bommai case [(1994) 3 SCC 1]. It would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court properly moulds the relief and grants the same in accordance with law.”
60. The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and “for any other purpose”. The distinction between public law and private law remedy by judicial adjudication gradually marginalised and became obliterated. In LIC v. Escorts Ltd. [(1986) 1 SCC 264] this Court (in SCC para 102, p. 344) had pointed out that the difficulty will lie in demarcating the frontiers between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares? It was in that fact-situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the State's power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta v. Union of India [(1987) 1 SCC 395 : 1987 SCC (L&S) 37] .
61. The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the action of the authority needs to fall in the realm of public law — be it a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question requires to be determined in each case. However, it may not be possible to generalise the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such actions. As held by this Court in Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B. [AIR 1962 SC 1044 : 1962 Supp (3) SCR 1] (AIR para 5) that if the legal right of a manager of a company is denuded on the basis of recommendation by the Board of Management of the company, it would give him right to enforce his right by filing a writ petition under Article 226 of the Constitution. In Mulamchand v. State of M.P. [AIR 1968 SC 1218 : 1968 Mah LJ 842] this Court had held that even though the contract was void due to non-compliance of Article 229, still direction could be given for payment of the amount on the doctrine of restitution under Section 70 of the Act, since the State had derived benefit under the void contract. The same view was reiterated in State of W.B. v. B.K. Mondal & Sons [AIR 1962 SC 779] (AIR at p. 789) and in New Marine Coal Co. (Bengal) (P) Ltd. v. Union of India [(1964) 2 SCR 859 : AIR 1964 Supreme Court 152]. In Gujarat State Financial Corpn. v. Lotus Hotels (P) Ltd. [(1983) 3 SCC 379] a direction was issued to release loan to the respondent to comply with the contractual obligation by applying the doctrine of promissory estoppel. In Mahabir Auto Stores v. Indian Oil Corpn. [(1990) 3 SCC 752] contractual obligations were enforced under public law remedy of Article 226 against the instrumentality of the State. In Shrilekha Vidyarthi v. State of U.P. [(1991) 1 SCC 212 : 1991 SCC (L&S) 742] contractual obligations were enforced when public law element was involved. Same judicial approach is adopted in other jurisdictions, namely, the House of Lords in Gillick v. West Norfolk and Wisbech Area Health Authority [1986 AC 112 : (1985) 3 All ER 402 : (1985) 3 WLR 830, HL] wherein the House of Lords held that though the claim of the plaintiff was negatived but on the anvil of power of judicial review, it was held that the public law content of the claim was so great as to make her case an exception to the general rule. Similarly in Roy (Dr) v. Kensington and Chelsea and Westminster Family Practitioner Committee [(1992) 1 AC 624 : (1992) 1 All ER 705 : (1992) 2 WLR 239, HL] the House of Lords reiterated that though a matter of private law is enforceable by ordinary actions, a court also is free from the constraints of judicial review and that public law remedy is available when the remuneration of Dr Roy was sought to be curtailed. In LIC v. Consumer Education and Research Centre [(1995) 5 SCC 482] this Court held that each case may be examined on its facts and circumstances to find out the nature and scope of the controversy. The distinction between public law and private law remedy has now become thin and practically obliterated."
16.4 The Apex Court again in the case of Public Services Tribunal Bar Assn vs State of U.P. reported in (2003) 4 SCC 104, which reads as follows:
“39. ...An employee is not left without any remedy. Judicial review of an order regarding which the jurisdiction of the Tribunal is barred would be available by approaching the High Court by filing petition under Article 226 or 227 of the Constitution of India.”
In terms of the law laid down by the Apex Court in the afore-extracted judgment, the facts obtaining in the case at hand will have to be noticed to arrive at a conclusion with regard to maintainability of the petition."
16.5 It is a fact, that the petitioners are Workmen and they have a dispute with regard to their wages. The petitioners – Workmen did file applications before the Conciliation Officer seeking redressal of their grievance. The Conciliation Officer having rejected the applications for want of maintainability, the Workmen have filed the present writ petition in terms of the afore-extracted mandate of the statute. An individual dispute for redressal of the grievance of the Workmen is not available and the grievance of the Workmen cannot be left to the mercy of the Union as the Union may or may not espouse the cause. Therefore, in the light of the law laid down by the Apex Court in the afore-extracted judgments, the writ petition filed by the Workmen under Article 226 of the Constitution of India is maintainable and the Workmen - petitioners cannot be left remediless.
Therefore, I answer point No.1 holding that writ petition is maintainable in the facts and circumstance of the case.
