HINDUSTAN STEEL WORKS CONSTRUCTION LTD. AND ANR. versus HINDUSTAN STEEL WORKS CONSTRUCTION LTD., EMPLOYEES UNION

Citation: [2005] SUPP. 2 S.C.R. 540 · Decided: 11-08-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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B 
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HIND UST AN STEEL WORKS CONSTRUCTION LTD. 
AND ANR. 
v. 
HINDUSTAN STEEL WORKS CONSTRUCTION LTD., 
EMPLOYEES UNION 
AUGUST 11, 2005 
[ARIJIT PASAYAT AND H.K. SEMA, JJ.] 
Constitution of India, 1950-Article 226-Writ Petition-Challenging 
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 
of applicability of section 9A is essentially a question of fact-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 
appellant-employer were withdrawn.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 
Court. Hence the present Appeal. 
Allowing the appeal, the Court 
HELD : 1. Writ Petition under Article 226 of the Constitution of 
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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., 
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(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, 
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 
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 
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 
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. 
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of Delhi, AIR (2002) SC 1724, referred to. 
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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. 
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542 
SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R. 
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Jaideep Gupta, Debmalya Banerjee and Ms. Shipra Ghose for the 
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Appellants. 
Rana Mukherjee, Anand Dey, Bikas Kar Gupta, D. Bharat Kumar and 
Abhijit Sengupta for the Respondent. 
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 ho
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