M J Antony: Case of the two-track mind

OUT OF COURT

Results vary when the same issue is raised through PIL and ordinary suits.

There are several procedural paths to get justice. Some of them are long and winding. The route through writs in the high courts or the Supreme Court is shorter and cheaper. Therefore, there is always a temptation to move writ petitions. The recent rush to move public interest writ petitions is a symptom of this tendency. The result of such petitions is also more favourable. Two recent judgments of the Supreme Court seem to emphasise this presumption.

The judgment in Kapila Hingorani vs State of Bihar dealt with the right of absorption of employees of the Bihar Hill Area Lift Irrigation Corporation (Bhalco), a state undertaking. After the division of Bihar in 2000 and the birth of Jharkhand, the latter set up the Jharkhand Hill Area Lift Irrigation Corporation (Jhalco). Both of them are in financial straits, like scores of other public undertakings of the two states. Some employees reportedly committed suicide, others are starving and most of them have not been paid for years. Therefore, a public interest petition was moved in the Supreme Court and it had asked the two states to create a fund to pay employees.

The Supreme Court has been persuading the two states to settle grievances of the employees with a humanitarian perspective. It made it clear that it was not passing directions to the two states on the premise that they were bound to pay salaries to the employees of the PSUs “but on the ground that the employees have a human right as also a fundamental right under Article 21 of the Constitution which the states are bound to protect”.

Whatever the mode or motive of the court action, the two states have been anxious to explain to the court that they are doing their best for the employees and trying to get them absorbed in their undertakings. The state secretaries have held long negotiations on absorbing employees, though the undertakings are admittedly in the red. The Supreme Court has been persistently monitoring the states’ efforts to bring relief to employees.

The Jharkhand high court is also dealing with the question of absorption of employees in their undertakings and departments. This was in response to the writ petition by the employees in the high court. In the latest order, the Supreme Court asked the high court to dispose their writ petition at the earliest and pass such orders regarding absorption, past salaries and the liability to pay them.

In contrast to this, another judgment of the Supreme Court was critical of employees seeking directions from the high court or the Supreme Court for absorption orders. This was the case of a sick undertaking from Uttar Pradesh (State of Uttar Pradesh vs UP Rajya Khanij Vikas Nigam Samiti). The state company fell sick soon after its birth and it started thinking of axing employees en masse. Employees clamoured for their absorption in other state undertakings and departments. Faced with this demand, the corporation did not retrench them but kept them in a limbo. The employees moved the Allahabad high court to prevent drastic steps against them. The state objected to the writ petition, arguing that employees have remedies under the labour laws.

Even the two high court judges who heard their case differed on the question of the maintainability of a writ petition when alternative remedies are available to employees under the industrial law. The third judge to whom the issue was referred to as an arbiter, stated that a writ petition could be moved and asked the state to absorb the staff. The other judge relied upon the state government’s word that the employees would be absorbed and ordered speedy steps towards it. The state government appealed to the Supreme Court against these orders.

According to the apex court, when such disputes involving contradictory claims based on facts are an issue, the proper forum to adjudicate them is the machinery set up under the industrial law. There are relevant provisions under the Industrial Disputes Act, the Payment of Wages Act and other state legislation. There are also statutory rules established under Article 309 of the Constitution regarding absorption of employees. Therefore, the proper place to agitate all these is not a writ court, but a labour court or the industrial tribunal.

These are established propositions. However, when the employees reach a point of starvation and suicide, as in both the above cases, the court faces a dilemma between strict law and equity. Procedure, it is often said, is only the handmaiden of justice. The whole public interest movement is built on this principle. It is this predicament that leads to apparently conflicting rulings by the court.