The Delhi High Court has reiterated that remedy in the form of writs is only available in “exceptional circumstances” while directing “contractual employees” to avail alternate remedy available under the Industrial Disputes Act before the Industrial Tribunal.
A single-judge bench of Justice Prathiba M. Singh noted the Labour Court ought to decide the claims of the workmen on merits. “The allegations that the new contractor has demanded huge sums of money for appointing workmen on contract basis is a quite disturbing feature, if true. Such allegations are becoming a common feature and are a disturbing trend in labour disputes,” it said.
The Court said,
“The Labour Court and the appropriate authority are directed to enquire into such allegations and take action in accordance with law if the allegations are proved to be correct.”
The the Instant matter (Naveen Kumar Vs. Employees State Insurance Corporation) pertains to 86 Safai Karamcharis who were engaged as the contractual employees of ESI Hospital. They lost their Job after the New Contractor was appointed by the Hospital Administration. Therefore, writ petition is preferred by the Safai Karamcharis in the Delhi High Court under Article 226 of the Constitution of India seeking prayer in the form Writ of Mandamus to direct the Hospital Authorities to employ them back.
It was submitted by the counsel of the Safai karamcharis that no contractual employee can be replaced by another contractual employee, in accordance with the judgment of the Supreme Court in State of Haryana and ors. Vs. Piara Singh [(1992) 4 SCC 118]. Further it was also submitted Safai Karamcharis were working in the hospital for 10 to 12 years and it will impact the lives of 500 people and they have also served during the pandemic, therefore it is not bonafide on the part of the Corporation to terminate their contract pertaining to their job.
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The High court while deciding the case relied on the Judgement of the Supreme Court which was pronounced by the Constitution Bench in L. Chandra Kumar Vs. Union of India [(1997) 3 SCC 261 where it was laid down that,
“the Tribunals created pursuant to Article 323-A or under Article 323-B of the Constitution of India are competent to hear matters entrusted to them and will continue to act as only Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. Supreme Court categorically observed that it will not be open for litigants to directly approach the High Court even in cases where there is a challenge to the vires of statutory Legislation, by overlooking the jurisdiction of the concerned Tribunal.”
The Supreme Court had further observed that the jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution of India, is a part of the inviolable basic structure of the Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred on the High Courts and the Supreme Court. It was thereafter held that while the Tribunals would function as Courts of ‘first instance’, all decisions of these Tribunals will be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.”
Thereafter, the Delhi High court relied on its earlier Judgement in PTI Employees Vs. Press Trust Of India and Anr. Which was decided on 18th September, 2020, to argue that the usual remedy that has to be availed of by any Workman, in such circumstances, would be the statutory remedy under the Industrial Disputes Act, 1947. And the writ remedy under Article 226 of the Constitution of India, is only to be exercised in exceptional circumstances, and ordinarily the workmen ought to be directed to approach the appropriate forum provided statutorily under the Industrial Dispute Act, 1947.
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After the above observations Justice Pratibha M. Singh that,
“Safai Karamcharis were contractual employees, engaged by the old Contractor. And it does not see any justification in their replacement, considering the fact that they were working in the hospital for 10 to 12 years. Moreover, during the pandemic, the justification to change the Contractor is also not considered to be bonafide conduct on part of the Corporation. However, considering the fact that new Contractor has already stepped in and various Workmen have already been posted in the hospital, the said issue is not being gone into by this Court. Needless to add, that if there is a need for further Workmen at the hospital, the new Contractor would consider appointing the Petitioners, who have considerable experience of working in the hospital”
The court gave liberty to the Safai Karamcharis to avail of their remedies in court of first instance i.e. Industrial Distpute Tribunal.
Read the order here;Naveen-Kumar