w w w . L a w y e r S e r v i c e s . i n



Refinery Employees Union (Krl), Bharat Petroleum Corporation Limited, Represented by Its General Secretary S.K, Nazeemudeen, Kochi & Others v/s Union of India, Represented by Its Secretary, Ministry of Heavy Industries & Public Enterprises, Department of Public Enterprises, New Delhi & Others

    WA. Nos. 786, 718 & 750 of 2021

    Decided On, 05 May 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR. JUSTICE VIJU ABRAHAM

    For the Appellants: P. Ramakrishnan, Preethi Ramakrishnan (P-212), T.C. Krishna, C. Anil Kumar, Asha K. Shenoy, Pratap Abraham Varghese, Rajesh Nair, K. Balachandran (Mangalath), Bijoy Chandran, Nikhil Viswam, C.S. Ajith Prakash, T.K. Devarajan, Franklin Arackal, Paul C. Thomas, M. Babu, Nidhin Raj Vettikkadan, Haaris Moosa, Devyani, Nikhita Ann Rebello, Adesh Joshi, Advocates. For the Respondents: S. Biju, CGC, J. Cama, Senior Advocate (B/O), Benny P. Thomas, SC., Manu, ASG of India, Saigi Jacob Palatty, Government Pleader, D. Prem Kamath, K.V. Praveen, N.J. Ashwin, Advocates.



Judgment Text

Alexander Thomas, J.

1. The unsuccessful writ petitioners in the above writ proceedings have initiated the aforecaptioned intra court appeals under Sec. 5(1) of the Kerala High Court Act, for impugning the common judgment dated 16.3.2021 rendered by the learned Single Judge dismissing W.P.(C).Nos.5641, and 5069 and 5391 of 2021.

2. Heard Sri.P.Ramakrishnan, learned counsel appearing for the appellants in W.A.No. 786/2021, Sri.R.Rajesh Nair, learned counsel appearing for the appellants in W.A.No.718/2021, Sri.C.S.Ajith Prakash, learned counsel appearing for the appellants in W.A.No. 750/2021, Sri.J.Cama, learned Senior Counsel, instructed by Sri.P.Benny Thomas, learned Standing Counsel for the Bharath Petroleum Corporation Ltd. (BPCL) appearing for the respondent BPCL authorities in these appeals and Sri.S.Biju, learned Central Government Counsel appearing for the respondent Union Government in W.A.No.786/2021, Sri.S.Manu, learned Assistant Solicitor General appearing for the respondent Union Government in W.A.No.718/2021 and Sri. N.J.Ashwin, learned Central Government Counsel appearing for the respondent Union Government in W.A.No. 750/2021.

3. As these cases raise common issues, these appeals are disposed on the basis of this common judgment.

4. W.A.No.786/2021 [Arising out of W.P.(C).No. 5641/2021] is taken as the lead case for the purpose of convenience and the documents referred to in this judgment will be with reference to the documents as produced in the said W.P.(C).No.5641/2021 unless otherwise indicated.

5. OM No.W-02/0039/2017/DPE(W.C)-GL-XVI/21 dated 19.11.2020 issued by the respondent Union Government in the Department of Public Enterprises, Ministry of Heavy Industries & Public Enterprises, has been produced as Ext.P-1 in the lead case, ie., W.P.(C).No. 5641/2021 and the same has been produced as Ext.P-3 in the other two Writ Petitions. OM No.W-02/0045/2020/DPE(WC) dated 8.1.2021, issued by the respondent Union Government in the Department of Public Enterprises, Ministry of Heavy Industries & Public Enterprises, has been produced as Ext.P-2 in the lead case, W.P.(C).No. 5641/2021, and the same has been produced as Ext.P-4 in the other two Writ Petitions. Counter affidavit dated 9.3.2021 has been filed by the respondent BPCL authorities only in W.P.(C).No. 5069/2021 [which has led to W.A.No. 718/2021] and memo has been filed in the lead W.P.(C).No.5641/2021 and the other W.P.(C)., viz., W.P.(C).No. 5391/2021 to adopt the said counter affidavit in those W.P.(C)s as well. Since the said counter affidavit has been filed only in W.P.(C).No. 5069/2021, the document referred to as Ext.P-3 in the said counter affidavit is Ext.P-1 in the lead W.P.(C).No. 5641/2021, the abovesaid OM dated 19.11.2020. However, the said former OM dated 19.11.2020 will be referred to as Ext.P-1 in this judgment for the sake of convenience.

6. The prayers in W.P.(C).No.5641/2021 [which has led to W.A.No. 786/2021] are as follows:

“(i) A writ of mandamus or any other appropriate writ or order directing the respondents 2 and 3 to disburse Industrial Dearness Allowance for the quarter October-December 2020 payable to the workmen employees of the 2nd respondent establishment forthwith.

ii) Hold that Exhibit P1 office memorandum which provides for freezing of Dearness allowance to employees of Central Public Sector Enterprises at current rates is not applicable to workmen category of employees in the 2nd respondent's establishment.

iii) A writ of mandamus or any other appropriate writ or order directing the 3rd respondent to take up and dispose of Exhibit P5 representation forthwith.”

The prayers W.P.(C).No.5069/2021 [which has led to W.A.No. 718/ 2021] are as follows:

“i) Call for the records leading to Exhibit P3 and set aside the same by the issue of a writ of certiorari or such other appropriate writ, direction or order; or in the alternative.

ii) Declare that Exhibit P3 shall be confined to Executives and Non- Unionised Supervisors and cannot be applied to the workers of the 2nd respondent company.

iii) Issue a writ of mandamus or such other appropriate writ, direction or order directing the respondents to pay increased/additional DA to the workmen based on periodical adjustment once in three months including that as on 01.01.2021, along with arrears, expeditiously, at any rate within a time frame as fixed by this Honourable court.”

The prayers in W.P.(C).No.5391/2021 [which has led to W.A.No. 750/ 2021] are as follows:

“(i) To call for the records leading to Ext.P3 memorandum and set aside or quash the same by issuing appropriate writ order or direction.

ii) To declare that Exhibit P3 Office Memorandum is confined only to the Executives and non-unionized Supervisors and cannot be applied to the workers of the 2nd respondent company.

iii) To issue a Writ of Mandamus or any other appropriate Writ or Order directing the respondents Nos.2 and 3, to pay the increased Dearness Allowance, to the members of the petitioner Union based on the periodical adjustments once in three months from 01.01.2021, along with its arrears within a time frame fixed by the Hon'ble Court.

7. The gist of the case set up in the above writ proceedings is as follows:

The petitioners are registered trade unions/ representatives of the workmen personnel of the Kochi Refinery of the respondent BPCL. In the wake of Covid-19 pandemic, the respondent Union Government has issued Ext.P-1 OM dated 19.11.2020 withholding additional instalments of dearness allowance (DA) payable to executives and non-unionized supervisors of the Central Public Sector Undertakings drawing pay as per 2017, 2007, 1997, 1992 and 1987 Industrial Dearness Allowance (IDA) Pay Revision guidelines due from 1.10.2020 till 30.6.2021.

8. The contents of Ext.P-1 OM dated 19.11.2020 issued by the respondent Union Government read as follows:

“No. W-02/0039/2017-DPE(WC)- GL-XVI/20

Government of India

Ministry of Heavy Industries & Public Enterprises

Department of Public Enterprises

****

Public Enterprise Bhawan

Block No.14, CGO Complex.

Lodhi Road, New Delhi – 110003

Dated, the 19th November, 2020

OFFICE MEMORANDUM

Subject:- Freezing of Dearness Allowance to Employees of Central Public Sector Enterprises(CPSEs) drawing pay as per 2017, 2007, 1997, 1992 & 1987 IDA pay revision guidelines at current rates till 30th June, 2021-reg

The undersigned is directed to say that in view of the crisis arising out of COVID-19, it has been decided that additional installments of Dearness Allowance payable to Employees of Central Public Sector Enterprises (CPSEs) drawing pay as per 2017, 2007, 1997, 1992 & 1987 IDA pay revision guidelines, due from 01.10.2020 shall not be paid. The additional instalments of Dearness Allowances due from 1.1.2021 and 01.04.2021, shall also not be paid. However, Dearness Allowance at current rates (w.e.f. 01.07.2020) will continue to be paid.

2. As and when the decision to release the future installment of Dearness Allowance due from 01.07.2021 is taken by the Government, the rates of Dearness Allowance as effective from 01.10.2020, 01.01.2021 & 01.04.2021 will be restored prospectively and will be subsumed in the cumulative revised rate effective from 01.07.2021. No arrears for the period from 01.10.2020 till 30.06.2021 shall be paid.

3. The above guidelines shall be applicable in case of Executives and Non-Unionised Supervisors of CPSEs drawing 2017, 2007, 1997, 1992 & 1987 IDA pay scales. The DA rates in case of CPSEs employees drawing CDA pay scales has already been frozen vide DPE's OM No. W-02/ 0038/2017-DPE(WC)-GL-IX/20 dated 28-04-2020 in line with the Department of Expenditure's OM No. 1/1/2020- E.II(B) dated 23.04.2020 in this regard.

4. All administrative Ministries/Departments of Government of India are requested to bring the foregoing to the notice of the CPSEs under their administrative control for necessary action at their end.

5. This issues with the approval of the Minister (HI&PE)

Sd/-

(P K Saha)

Director

To

The Secretaries of all administrative Ministries/Departments of the Government of India,

Copy to:

1. The Secretary, Department of Expenditure, North Block, New Delhi

2. The Chief Executives of Central Public Sector Enterprises.

3. Financial Advisers in the Administrative Ministries/Departments.

4. The Comptroller & Auditor General of India, 9 Deen Dayal Upadhayay Marg, New Delhi.

5. NIC, DPE with the request to upload this OM on the DPE website.

Sd/-

(P K Saha)

Director”

It has been specifically made clear in para 3 of Ext.P-1 OM dated 19.12.2020 that the abovesaid norms shall be applicable in the case of executives and non-unionized supervisors of the Central Public Sector Enterprises, drawing IDA pay scales as above. However, the respondent BPCL authorities have taken the stand that going by clause 12(D) of the settlement arrived at between the respondent BPCL management and the trade unions of the workmen category, it is envisaged that any Government of India guidelines on the subject of DA, including changes, if any, which are not in conflict with the overall pay structure, as per the said memorandum of settlement, shall be duly implemented. Further according to them, since Ext.P-1 guidelines are not in conflict with the overall pay structure of the employees of the workmen category, the management has therefore applied the restrictions therein regarding DA in the case of workmen category as well. Various other Central Public Sector Enterprises including Central Public Sector oil companies like, Indian Oil Corporation (IOC), Hindustan Petroleum Corporation Ltd. (HPCL), etc. also had earlier taken the stand that the restrictions of DA arising out of Ext.P-1 OM dated 19.11.2020 have to be made applicable, not only to executives and non-unionized supervisors but also to workmen category. The said stand so taken by the management of a Central Public Sector Enterprise, viz., Fertilizers & Chemicals Travancore (FACT), which is situated in Kerala, was challenged by the workers' organizations of the FACT by filing Writ Petitions, W.P. (C).No. 26423/2020 and W.P.(C).No. 27918/2020. Therein, this Court had specifically directed the respondent Union Government authorities to make their stand clear as to whether the restrictions for payment of DA as above as made out in the abovesaid OM dated 19.11.2020 (Ext.P-1 herein) are applicable only to executives and nonunionized supervisors of CPSEs or whether it would also apply to workmen personnel. The competent authority of the respondent Union Government therein had specifically apprised this Court that the norms and guidelines contained in the abovesaid OM dated 19.11.2020 [Ext.P-1 herein/Ext.P-2 therein] will apply only in the case of executives and non-unionized supervisors of the CPSEs and that it has no application in so far as the workmen in those enterprises are concerned. Accordingly, this Court held that the operation and enforcement of the impugned proceedings issued therein by the respondent management of the FACT have to be confined only to executives and non-unionized supervisors of Central PSEs and not in the case of workmen category and that the impugned proceedings of the respondent management to the extent it has been made applicable to personnel other than executives and non-unionized supervisors of Central PSEs is set aside, resulting in consequential benefits to such other categories of employees including workmen. A reading of the abovesaid judgment dated 17.11.2020 rendered by this Court in W.P.(C).No. 26423/2019 and W.P.(C).No. 27918/2020 will also indicate that the abovesaid writ proceedings have been disposed of by this Court, pending conciliation proceedings with the respondent Regional Labour Commissioner (Central) therein, etc. A copy of the abovesaid common judgment dated 17.9.2020 in W.P. (C).No. 26423/2020 and W.P.(C).No. 27918/2010 has been produced as Ext.P-8 in W.P.(C).No.5391/2021 [which has led to W.A.No. 750/ 2021] and as Ext.P-5 in W.P.(C).No. 5069/2021 [which has led to W.A.No. 718/2021].

9. It is apprised to us that the abovesaid common judgment dated 17.12.2020, rendered by this Court in W.P.(C).No. 27918 and 26423 of 2020 has become final and the same has been complied with by the respondent authorities therein and the same has not been challenged or altered in the manner known to law. We are told that the abovesaid judgment of this Court in those W.P.(C)s. has been followed by other High Courts like the Bombay High Court, Karnataka High Court in the case of certain writ litigative proceedings initiated on behalf of the workmen of certain other public Sector enterprises. Later, the competent authority of the respondent Union Government has issued Ext.P-2 OM No.W-02/0045/2020/ DPE/W.C. dated 8.1.2021 specifically declaring and ordering that Ext.P-1 OM dated 19.11.2020 will apply only in the case of executives and non-unionized supervisors in the CPSEs and the same shall not apply to other employees including the workmen of CPSEs, etc. The contents of Ext.P-2 OM dated 8.1.2021 read as follows:

“No. W-02/0045/2020-DPE(WC)

Government of India

Ministry of Heavy Industries & Public Enterprises

Department of Public Enterprises

****

Public Enterprise Bhawan,

Block No.14, CGO Complex.

Lodhi Road, New Delhi – 110003

Dated, 8th January, 2021

OFFICE MEMORANDUM

Subject:- Freezing of Dearness Allowance of Employees of CPSEs - reg.

The undersigned is directed to refer to Ministry of Coal (MoC)'s OM No.49015/1/2020 LA&IR dated 07.12.2020 and Ministry of Mines (MoM) 11/18/2020 Mat.1 dated 14.12.2020 seeking clarifications in the matter cited above.

2. DPE vide OM dated 19.11.2020 has issued guidelines on freezing of IDA rate w.e.f. 01.10.2020 till 30.06.2021, in respect of executives and Non- Unionized Supervisors of CPSEs following 2017, 2007, 1997, 1992 and 1987 IDA pay scales para 3 of the said OM inter-alia, states that "The above guidelines shall be applicable in case of Executives and Non-unionized Supervisors of CPSEs drawing 2017, 2007, 1997, 1992 & 1987 IDA pay scales." The other employees including workmen of CPSEs are not covered under these guidelines.

Sd/-

(Samsul Haque)

Under Secretary

Ministry of Coal,

(Shri Ram ShirOmani Saroj, Dy Secretary)

Lok Nayak Bhawan, Khan Marker, New Delhi.

Ministry of Mines,

(Shri Adhir Kumar Malik, Under Secretary)

Shastri Bhawan, New Delhi.”

10. The aforementioned writ proceedings in the case of workmen category of the FACT have been initiated and finalised before the issuance of Ext.P-2 OM dated 8.1.2021 inasmuch as the judgment therein has been rendered on 17.12.2020. Whereas the present three Writ Petitions (Civil) have been instituted after the issuance of Ext.P-2 OM on 8.1.2021. The main contention urged by the writ petitioners is to the effect that the restrictions on payment of DA have been initiated by the respondent BPCL only on the basis of Ext.P-1 OM dated 19.11.2020. That since none other than the Union Government authorities have ordered and declared in subsequent proceedings, as per Ext.P-2 OM dated 8.1.2021, that the restrictions in Ext.P-1 will apply only in the case of executives and non-unionized supervisors of CPSEs and not in the case of other employees, including workmen of CPSEs, the impugned action of the respondent BPCL authorities in continuing the said restrictions is illegal and ultra vires the specific restrictions of the respondent Union Government in Ext.P-2 OM dated 8.1.2021 and that this Court may interfere in the matter as above. So also, there is no dispute that the other Central Public Ltd. oil companies like the IOC, HPCL, etc. immediately after the issuance of Ext.P-2 OM dated 8.1.2021, have issued proceedings as per Ext.P-3 dated 25.1.2021 in the case of IOC and Ext.P-4 dated 21.1.2021 in the case of HPCL, whereby they have revised their earlier stand in enforcing the restrictions arising out of Ext.P-1 to the workmen category and have released the due DA benefits to workmen category personnel.

11. Per contra, the respondent BPCL authorities have opposed the abovesaid pleas in the abovesaid Writ Petitions (Civil) by filing the abovesaid counter affidavit dated 9.3.2021 in W.P.(C). No.5069/2021, which has been adopted in the other cases as well. However, it is relevant to note that the said counter affidavit does not in any manner deal with the aspects borne out from the latter OM dated 8.1.2021 [Ext.P-2 in the lead case/Ext.P-4 in the other two W.P. (C)s]. The main objection raised by the respondent BPCL is to the effect that, taking into account the specific directive in the OM dated 19.11.2020 (Ext.P-1 in the lead case/Ext.P-3 in the other cases], though the said directives therein are confined to executives and nonunionized supervisors, in view of the fact that the overall compensation framework of managerial staff has a bearing on the compensational framework for workmen, dearness allowance revision has been kept in abeyance from January 2021 for all employees including the workmen and that as the freezing of DA on the basis of the OM dated 19.11.2020 (Ext.P-1 in the lead case/ Ext.P-3 in the other case) is not in conflict with the overall pay structure of the employees in the workmen category, the respondent BPCL management is justified in implementing or extending or making applicable the guidelines in the OM dated 19.11.2020 to the employees in the workmen category also. Further, the sheet anchor of the case set up by the respondent BPCL in the above writ proceedings is that, in view of clause 50 of the memorandum of settlement, any such disputes, including the disputes arising from restriction or withholding of the DA ,has to be sorted out through the machinery prescribed under the ID Act, 1947 and that an efficacious alternative statutory remedy is available inasmuch as the unions of the workmen can seek reference of the abovesaid industrial dispute in terms of Sec. 10(1)(b) of the Industrial Disputes Act, 1947, to the Labour Court/ Industrial Tribunal, as the case may be, for adjudication, in accordance with law. That in view of the availability of the said statutory remedy, the resort to writ jurisdiction may not be right and proper.

12. The learned Single Judge after hearing both sides, has rendered the impugned judgment on 16.3.2021 dismissing the above W.P.(C)s, observing that unions of the workmen can seek resolution of the disputes through the machinery prescribed as per the Industrial Disputes Act, especially when there is breach of settlement and nonpayment of the benefits as per terms of the settlement entered into between the employer and the employee and that they have to approach the adjudicatory forum under the Industrial Disputes Act for the abovesaid purpose and that resort to discretionary remedy under Art.226 of the Constitution of India is not proper, etc. However, though the learned Single Judge has noted the issuance of the latter OM dated 8.1.2021 (Ext.P-1 in the lead case and Ext.P-4 in the other cases) as well as the contentions raised by the petitioners on the basis of the said latter OM dated 8.1.2021, the effect of the said latter OM dated 8.1.2021 and the contentions arising out thereof, etc. have not been considered and addressed by the learned Single Judge in the impugned judgment dismissing the above W.P.(C)s.

13. We have heard both sides in extenso on various occasions and have considered the rival contentions as well as the pleadings and materials on record.

14. The appellants/ petitioners would mainly contend that the respondent BPCL authorities have proceeded on the premise as if the restrictions on DA arising out of Ext.P-1 OM dated 19.11.2020 are applicable to workmen category as well and have taken steps in this regard to implement the norms in Ext.P-1 OM dated 19.11.2020 in the case of the workmen category personnel as well. Further that, this Court has already held in the above referred common judgment dated 17.12.2020 in W.P.(C).No. 27918 and 26423 of 2020 that even going by the stand of the respondent Union Government, the abovesaid restrictions borne out from the OM dated 19.11.2020 can be made applicable only in the case of executives and non-unionized supervisors of CPSEs and that the same cannot be made applicable to other employees including workmen category personnel in such Central PSEs and this Court has already interfered with the said impugned action taken by one such Central PSE and has directed that the withheld DA benefits should be released to the workmen category in that case. Further that the said judgment dated 19.11.2020 in those W.P.(C)s. have been rendered by this Court even before the issuance of the latter OM dated 8.1.2021. That, more cardinally, none other than the respondent Union Government has subsequently issued the latter OM dated 8.1.2021, making it clear like the day light that the restrictions in Ext.P-1 OM dated 9.11.2020 can apply only in the case of executives and non-unionized supervisors of CPSEs and not in the case of other employees, including workmen category personnel. That with the issuance of the latter Ext.P-2 OM dated 8.1.2021, similarly situated Central PSE oil companies like IOC, HPCL, etc. have fully complied with the directives of the respondent Union Government in the latter Ext.P-2 OM dated 8.1.2021 by issuing remedial and corrective measures as per Exts.P-3 and P4 referred to herein above and releasing the withheld DA benefits to the workmen category personnel of those Central Public Sector oil companies like IOC, HPCL, etc. That with the issuance of the latter Ext.P-2 OM dated 8.1.2021, the further stand of the respondent BPCL in continuing to insist that the withheld DA benefits will not be granted to their workers, is illegal and ultra vires the provisions contained in the latter Ext.P-2 OM dated 8.1.2021. That the learned Advocates appearing for the writ appellants have strongly urged before us that the present impugned action of the respondent BPCL is one which would eminently and substantially come within the zone of a public law cause of action and is amenable to public law remedy of judicial review, invested with this Court under Art.226 of the Constitution of India. Further, the learned Advocates appearing for the writ appellants would point out that no disputes whatsoever have been raised by the respondents that the respondent BPCL is an “other authority” within the meaning of the definition of “State” contained in Art.12 of the Constitution of India and that their only dispute is that an alternative remedy of adjudication by the forum created under the I.D. Act is available and that has to be resorted to and further that evidence has to be taken, etc. It is pointed out by the learned counsel appearing for the appellants that in the instant case, no evidence is required to be taken and the main issue is as to whether the action of the respondent BPCL in continuing to insist to enforce the restrictions in Ext.P-1 OM dated 19.11.2020, even after the issuance of the latter Ext.P-2 OM dated 8.1.2021, is reasonable and fair or whether it is arbitrary or capricious and also as to whether the said impugned action of the respondent BPCL is in consonance with the specific directives issued by the respondent Union Government as per the latter Ext.P-2 OM dated 8.1.2021.

15. It is pointed out by the learned Advocates for the appellants that though they have also raised certain other contentions that prior notice under Sec.9A Industrial Disputes Act has not been issued in this case and that the continued imposition of the restrictions in Ext.P-1 OM as far as the workmen category is concerned, would also amount to breach of the settlement. Those contentions have been made to highlight that the impugned action of the respondent BPCL to the extent it affects the workmen category personnel would also be violative of the provisions contained in the ID Act. That even de hors such contentions based on the ID Act, the impugned action of the respondent BPCL in continuing to insist to enforce the restrictions in Ext.P-1, even after the issuance of Ext.P-2, would be eminently and substantially a public law cause of action and therefore, amenable to public law remedy by way of judicial review of the impugned action rendered by the respondent BPCL, etc.

16. Further, the appellants would contend that similar stand was also earlier taken by other similarly situated central public sector oil companies, like IOC, HPCL, etc. who immediately after the issuance of the latter Ext.P-2 OM dated 8.1.2011, issued Ext.P-3 and P-4 dated 25.1.2021 remedying and correcting their stand by releasing the withheld DA benefits to the workmen category personnel of those Central Public Sector oil companies. That the said aspect would also make it clear that the abovesaid aspect of continued insistence made by the respondent BPCL would also be vitiated by unreasonableness and arbitrariness, etc. The appellants would also place reliance on various decisions to contend that, even if there is statutory alternative remedy by way of the machinery created under the ID Act, 1947, the same is not an absolute bar and the writ court has power to consider whether the discretion under Art.226 of the Constitution of India is to be exercised and that the present case is predominantly one in which the public law remedy would be highly imperative and necessary in the interest of justice.

17. Per contra, Sri.J.Cama, learned Senior Counsel instructed by Sri.P.Benny Thomas, learned Standing Counsel for the respondent BPCL authorities, has strongly opposed the pleas of the petitioners and would point out that there is no public law element involved in the present cases and that the learned Single Judge was fully right in ordering that the petitioners will have to seek the remedies in terms of the machinery established in terms of the Industrial Disputes Act, 1947, including adjudication before the forum concerned and that the said view of the learned Single Judge may not be reversed, upset by this Court.

18. In that regard, the respondents BPCL would contend, on the basis of the pleadings in the counter affidavit, more particularly paras 11 and 12 thereof, taking into account the specific directives of the Union Government in the OM dated 19.11.2020 (Ext.P-1 in the lead case/Ext.P-3 in the other cases) that though said directives have been confined to executives and non-unionized supervisors, in view of the fact that the overall compensation framework of the management staff has a bearing on the compensation framework for workmen, DA allowance revision has been kept in abeyance from January 2021 for all employees including the workmen. The respondent BPCL would specifically place reliance on Clause 12, more particularly sub clause (d) of the memorandum of settlement and clause 50 of the memorandum of settlement. Clauses 12 and 50 of the memorandum of settlement are as follows:

Clause 12:

“12.DEARNESS ALLOWANCE

a. The Dearness Allowance applicable to the quarter July-September 2008 based on the AICPI points of 3150 will be merged with the Basic Pay as of 31.07.2008 as given in the fitment methodology. In other words, 100% DA neutralization will be applied for all workmen covered under this MoS w.e.f. 01.08.2008. Thus the DA as on 01.08.2008 will become zero, linked to All India Consumer Price Index (AICPI) 2001=100, which is 138.0.

b. The periodicity of adjustment will be once in three months i.e., on 1st April, 1st July, 1st October and 1st January every year based on the percentage of increase/ decrease in the quarterly average of AICPI for the quarters December- February, March-May, June- August and September-November respectively over AICPI of 138.0 (Base 2001=100), reckoned upto the first decimal point.

c. The quarterly DA payable from 01.08.2008 as per revised DA scheme shall be as given in Annexure-C.

d. Any Government of India guidelines on the subject of Dearness Allowance including changes if any, which are not in conflict with the overall pay structure as per this Mos shall be duly implemented. In the event of likelihood of any such conflict with the overall pay structure of this MoS, decision shall be taken by the Management after holding due discussions with the Unions.

Clause 50 reads as follows:

“Clause 50. IMPLEMENTATION/ INTERPRETATION OF MoS The parties shall abide by this MoS in true spirit. In case there is any dispute regarding implementation of this settlement or interpretation of any of its provisions, the parties shall try to sort out their differences through mutual discussion failing which they shall resort to the machinery prescribed under the Industrial Disputes Act, 1947.

Both parties have agreed to the above terms & conditions and also to submit the implementation report of this settlement to the Regional Labour Commissioner (Central), Kochi on or before 30.09.2013, failing which it will be presumed that this memorandum of settlement is implemented to the satisfaction of the parties concerned”.

19. In that regard, it is particularly argued by the learned Senior Counsel that in view of Clause 12(d) of the settlement, the unions have accepted the implementation of any Government of India guidelines on dearness allowances, which are not in conflict with the overall pay structure and that OM dated 19.11.2020 (Ext.P-1 in the lead case) has been issued by the Union Government considering the overall impact of the industrial sector due to Covid-19 and further that freezing of dearness allowance by way of OM dated 19.11.2020 (Ext.P-1 in the lead case) is not in conflict with the overall pay structure of the employees of the workmen category, etc. and therefore, the management of the respondent BPCL is justified in implementing or extending or making applicable the OM dated 19.11.2020 to the employees in the workmen category also. Further that the parity principles of wage structure of the workmen category have been always sought in line with that of the management cadre and it cannot be said that only the Government of India guidelines, which are advantageous are invocable and not the guidelines that are regarded as disadvantageous. It will be pertinent to refer to paras 11 and 12 of the abovesaid counter affidavit filed by the respondent BPCL, which read as follows:

'11. However, in BPCL, DA for the quarter October, 2020 to December 2020 was revised for all employees prior to receiving Ext.P-3 DPE OM regarding DA freezing. Taking into account the specific directive in Ext.P-3, though the directive has been confined to the executives and non-unionized supervisors, in view of the fact that the overall compensation framework of Management Staff has a bearing on the compensation framework for Workmen, DA revision has been kept in abeyance from January 2021 for all employees including workmen.

Keeping in mind the Clause 12 of Ext.P-1 which read as under:

“Any Government of India guidelines on the subject of Dearness Allowance including changes if any, which are not in conflict with the overall pay structure as per this MoS shall be duly implemented.”

“12. It is pertinent to note that in view of clause 12 (d) in Ext.P-1 settlement, the Unions have accepted implementation of any Government of India Guidelines on the subject of Dearness Allowance which are not in conflict with the overall pay structure. It is submitted that Ext.P-3 has been issued considering the overall impact on the industrial sector due to Covid-19 and further the freezing of DA by way of Ext.P-3 Government guideline, is not in conflict with the overall pay structure of the employees in the Workmen category, the management of the 2nd respondent is justified in implementing or extending or making applicable Ext.P-3 Government Guideline to the employees in the Workmen category also.'

20. Further, the respondent BPCL would place reliance on Note 33-iii and Note viii of Clause of 33 of the Memorandum of settlement, which deals with cafeteria benefits. Notes iii and viii of Clause 33 read as follows:

“iii. Any Government of India guidelines, current of those emerging from time to time, including that of DPE, Income Tax. etc. regarding Perks and allowances, bearing their implications on Cafeteria benefits, shall apply to all times to the Salary & allowances payable to the Workmen under the provisions of this settlement. Such changes shall be communicated to the Workmen at appropriate times.

xxx xxx xxx

viii. From time to time detailed administrative circulars shall be issued on the Cafetaria approach/allowances including the applicable amounts/percentages, required procedures for availing these benefits, etc.”

In that regard, it is urged by the respondent BPCL that even Government of India guidelines, which are current or those emerging from time to time, including that of Department of Public Enterprises, Department of Income Tax, etc. regarding perks and allowances bearing their implications on cafeteria benefits, shall apply at all times to the salary and allowances payable to workmen under the provisions of the said settlement and such changes shall be communicated to the workmen at appropriate times.

21. Clause 42 of the Memorandum of Settlement deals with retirement benefits, which reads as follows:

“Clause 42.RETIREMENT BENEFITS:

In accordance with Government guidelines, retirement benefits including contributory Provident Fund, Gratuity, New Pension Scheme, Post Retirement Medical Benefits and monthly Ex-Gratia Scheme (MEGS) shall be within the ceiling of upto 30% of revised Basic Pay + Stagnation Relief Increment (if any) and DA with effect from 01.08.2008.”

On the basis is the abovesaid pleadings in the counter affidavit, it is strongly contended on behalf of the respondent BPCL that it is not as if that only those Government of India guidelines, which are advantageous to the workmen alone can be pressed into service and that in view of the parity principles of the wage structure of workmen category vis-a-vis managerial staff, it is not only advantageous norms of the Government of India but also disadvantageous norms of the Government of India that can be pressed into service by the management and more particularly in the light of Clause 12 (d) of the memorandum of settlement, which deals with dearness allowance. That the appellants/petitioners representing workmen are estopped from contending that only advantageous guidelines issued by the Government of India alone can be pressed into service and that principles of estoppel would lead to the scenario that norms issued by the Union Government, which are both advantageous or disadvantageous to the workmen, can be pressed into service appropriately and that if the unions of the workmen have any dispute regarding the same, Clause 50 of the memorandum of settlement provides a way out for resolving such disputes, which is to approach the machinery created under the Industrial Disputes Act, which envisages for approaching the conciliation authority first and there is failure of conciliation, then the unions will have to get the industrial disputes referred by the Union Government to the appropriate adjudicatory forum like Labour Court/Industrial Tribunal, as the case may be, under Sec. 10(1)(b) of the ID Act. Further that, in a dispute of this nature, evidence will have to be taken by the adjudicatory forum. Though the counter affidavit of the respondent BPCL is silent about the issuance and impact of the latter Ext.P-2 O.M. dated 8.1.2021 issued by the Union Government, and though the learned Single Judge had not, in any manner, dealt with those crucial issues, it has been argued before us by the respondent BPCL that the latter Ext.P-2 O.M. dated 8.1.2021 will not, in any manner, change the scenario inasmuch as, the norms in Ext.P-1 O.M. dated 19.11.2020 to the workmen category, are not in conflict with the overall pay structure, etc, and that such an action on the part of the respondent BPCL is permissible, in terms of Clause 12(d) of the Memorandum of Settlement and that, even if the unions of the workmen have a case that Ext.P-1 O.M. dated 19.11.2020 would be in conflict with the overall pay structure, etc. even that would amount to an industrial dispute, and that if the unions of the workmen are aggrieved by the abovesaid stand of the workmen, then the only way out is not by invoking writ jurisdiction, but by setting in motion the remedy provided under the Industrial Disputes Act, in view of Clause 50 of the Memorandum of Settlement.

22. Sri.J.Cama, learned Senior Counsel appearing for the respondent BPCL has pointed out that the Apex Court has held in the decision in Binny Ltd. & Anr. v. Sadasivan & Ors. [AIR 2005 SC 3202] that a writ proceedings is pre-eminently a public law remedy and that in para 31 thereof it is stated that the learned Single Judge had in that case, conclusively held that the decision of an employer to terminate the services of the employees cannot be said to have any element of public policy, and that, interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition and that in such case, the only remedy is in civil law or under the labour laws, etc. Further that in Joshi Technologies International Inc. v. Union of India & Ors. [(2015) 7 SCC 728], it has been noted in para 55 thereof that it has been submitted that the interpretation of various Clauses of the settlement therein (a non-statutory document) and determination of an industrial dispute between employer and employees does not contain any public law element. Consequently, it was held that the writ petition in that case is not maintainable.

23. Further that in the case in Transport & Dock Workers Union & Ors. v. Mumbai Port Trust & Ors. [MANU/SC/0958/2010] the Apex Court has held therein that, the mere fact that an employer/employee dispute involves alleged discrimination and alleged violation of Article 14 of the Constitution of India, would not per se permit the writ court to entertain an industrial dispute.

24. That in Hindustan Steel Works Construction ltd. & Ors. v. Hindustan Steel Works Construction Ltd., Employees Union [MANU/SC/0480/2005] it was inter alia held that the writ court had wide powers, but it cannot in that jurisdiction consider what is, in reality, an industrial dispute.

25. In the case in The Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke of Bombay & Ors. [MANU/SC/0369/1975 = AIR 1975 SC 2238] the Apex Court had noted that a suit had been filed by the Union in respect of rights flowing from a particular settlement and that therefore, the claim was based on the terms of the settlement. Further that therein the Apex Court concluded that where the statute confers a right and in the same breath provides for a remedy, the remedy provided by the Act is an exclusive one, and that ultimately the Apex Court has noted that in a case where the source of the right to be enforced was under a settlement, the Civil Court had no jurisdiction in the matter, and the remedy was in terms of the Industrial Disputes Act.

26. It is also pointed out in U.P. State Bridge Corporation Ltd. & Ors. v. U.P. Rajya Setu Nigam S. Karamchari Sangh [MANU/SC 0130/2004] the Apex Court has made it clear that the abovesaid principle laid down in Premier Automobiles' case supra [AIR 1975 SC 2238] would apply to writ jurisdiction as well, and that in the case of an industrial dispute, the aforesaid Act provides for one remedy and that it was also held that where the petition has been dismissed on the same issue, the High Court cannot consider a second petition on the same subject matter.

27. We have already referred to the specific and categorical stand taken by the respondent Union Government in a similar case, as can be seen from para 5 of the common judgment dated 17.12.2020 rendered by this court in WP(C).Nos.27918 & 26423 of 2020 produced as Ext.P-8 in WP(C).No.5391/2021 and as Ext.P-5 in WP(C).No.5069/2021.

28. Apart from that, statement dated 3.3.2022 has been filed by Sri.N.J.Ashwin, learned Central Government Counsel appearing for the respondent Union Government in W.A. No.750/2021, wherein mention is made about the issuance of the former O.M. dated 19.11.2020 and about the Industrial Dearness Allowance (IDA) freezing guidelines and that IDA freezing guidelines are categorically applicable for all employees of CPSEs for drawing pay as per the pay revision guidelines issued from time to time, and in para 4 thereof, it is stated that the 2017 pay revision guidelines were applicable to board level & below board executives and non unionized supervisors of CPSEs w.e.f 1.1.2017 issued with the approval of the Cabinet, and that these pay revision guidelines authorise the Department of Public Enterprises (DPE) to revise the IDA from time to time, every quarter, for these categories of employees of CPSEs, and further it is categorically stated in para 4 thereof that other employees of CPSEs are not covered under those guidelines, and that thus, the guidelines of IDA freezing are not applicable to workmen of the CPSEs. It is also stated in para 5 thereof that in the case of unionized workmen of the CPSEs, wage revision was done as per the wage settlement between the trade union/association and management of the CPSE concerned, and under broad parameters issued by DPE from time to time. The DPE vide O.M. dated 24.11.2017 has issued policy guidelines of the 8th round of wage negotiation for unionized workmen of CPSE w.e.f 1.1.2017. That thus, revision of D.A. rates for the workmen category of employees is governed by the wage settlement of the CPSE concerned and para 2(x) of the said OM states that “The CPSEs would implement negotiated wage after confirming with their administrative Ministry/ Department that the wage settlement is in conformity with the approved parameters.” It is also stated in the said statement that the Department of Public Enterprises issues general guidelines for the employees of the CPSE and implementation of the same rests with the administrative Ministry/ Department of the CPSE concerned and that the Ministry of Petroleum and Natural Gas is the administrative Ministry of BPCL, which is not a party herein and also that the responsibility for conduct of litigation is on the administrative Ministry/ Department concerned, etc.

29. As already mentioned, para 4 of the abovesaid statement dated 3.3.2022 filed by the respondent Union Government makes it clear like the day light that the abovesaid IDA guidelines issued as per Ext.P-1 OM dated 19.11.2020 are not applicable to the workmen of the CPSEs.

30. After hearing all the parties concerned in extenso and after anxious consideration of the matter, it has to be noted that Ext.P-1 OM dated 19.11.2020 was issued by the respondent Union Government due to the crisis arising out of the Covid 19 pandemic issues. A reading of Ext.P-1 OM dated 19.11.2020 would make it abundantly and crystal clear that the abovesaid guidelines regarding the restriction of DA as mentioned therein will be applicable in the case of executives and non unionized supervisors of the Central Public Sector Enterprises under the Union Government. Even if it is assumed that Ext.P-1 OM dated 19.11.2020 would apply even to workmen category, we have no doubt in our mind that the issues arising out of the reasonableness or otherwise of the enforcement of Ext.P-1 OM dated 19.11.2020 issued by the Union Government to restrict the dearness allowances of employees of CPSEs would certainly be a matter which would have very strong public interest component. There is no dispute that the respondent BPCL is an “other authority” within the meaning of the definition of “State” as per Art.12 of the Constitution of India as it is fully owned by the Government of India and is subject to various regulatory controls of the Union Government. At no point of time, has it been remotely contended before us by the respondent BPCL that the said Corporation is not an “other authority” within the meaning of Art.12 of the Constitution of India.

31. That apart, it is relevant to note that a 3-Judge Bench of the Apex Court in the decision in Som Prakash Rekhi vs. UOI & Anr. [(1981) 1 SCC 449] has categorically held that applying various criteria emanating from the previous decisions of the Apex Court as in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489, etc. it is only to be held that Bharat Petroleum Corporation Ltd. would fullfill the definition of “State” within the meaning of Article 12 of the Constitution of India.

32. The main objection raised before the learned Single Judge and before us is that the appellants/ petitioners who are unions/associations of workmen of the respondent BPCL have an efficacious and alternative remedy to approach the adjudicatory forum in terms of the Industrial Disputes Act, 1947 and that therefore, resort to writ jurisdiction is not right and proper and the approach taken by the learned Single Judge is correct and tenable, etc. A reading of paras 11 and 12 of the counter affidavit filed by the respondent BPCL in the instant case would also make clear that they have initially triggered the impugned action only on the basis of Ext.P-1 OM dated 19.11.2020 and not otherwise. The respondent BPCL is certainly and undoubtedly a central public sector enterprise within the meaning of Exts.P1 and P-2 OMs. Therefore, the issues arsing out of the reasonableness or otherwise of the enforcement of the norms arising out of Exts.P-1 and P-2 OMs issued by the respondent Union Government and that too, in the context of Covid- 19 pandemic issue and made applicable throughout the country, is certainly a matter of great public interest. Therefore, the aspects relating to the legality and reasonableness of the matters arising out of Exts.P-1 and P-2, especially to the extent it affects the workmen category, would certainly be a matter which would predominantly and substantially come within the scope and ambit of a public law cause of action and therefore, the public law remedy by way of judicial review is certainly invocable, provided necessary grounds for invoking public law remedy are established.

33. Reliance placed by the respondent BPCL on the decision of the Apex Court in Binny Ltd. & Anr. v. Sadasivan & Ors. [AIR 2005 SC 3202], is not tenable and sustainable. A reading of the said judgment of the Apex Court in Binny Ltd's case supra [AIR 2005 SC 3202, paras 32 and 33 thereof] would make it clear that the appellant company therein is a private sector company and the matters arising out of the employer-employee relationship and the termination of the said relationship are all matters eminently within the scope and ambit of a contract of personal service entered into between an employer of a private sector entity and employees of such a private entity. A contention was raised therein that even in contractual matters, in respect of public bodies, the principles of judicial review have only limited application as can be seen from para 31 thereof. The Apex Court repelled the said plea holding in para 32 thereof that there must certainly be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties. There cannot be any dispute whatsoever that a contract of personal service entered into between an employer who is a private sector entity and its workmen/employees concerned cannot be said to be having any pubic law element inasmuch as it is essentially within the domain of private contracts entered into between the parties. Whereas in the instant case, Central Public Sector Enterprises covered by Exts.P1 and P-2 are public sector undertakings fully owned by the Government of India and under their regulatory control. The very fact that those central PSEs are under the regulatory control of the respondent Union Government for the subject matters covered by Exts.P1 and P-2 is evident and manifest from the mere issuance of Exts.P1 and P-2. Detailed reference has been made by the respondent BPCL in their counter affidavit that various norms and guidelines issued by the Government of India from to time are made applicable by them to regulate the service conditions of both managerial personnel as well as workmen category personnel. When that is the admitted position of the respondent BPCL, there cannot be any doubt that legality, reasonableness, propriety, etc. of the matters arising out of the enforcement of the executive orders issued by the respondent Union Government, like Exts.P1 and P-2, would certainly be having very strong public law element. As mentioned herein above, even the respondent BPCL has admitted clearly in their counter affidavit, more particularly in paras No.11 and 12 thereof, that they have triggered the impugned action to restrict and freeze the dearness allowances only on the basis of Ext.P-1 OM dated 19.11.2020. This Court has already held even prior to the issuance of Ext.P-2 OM dated 8.1.2021 as per the common judgment dated 17.12.2020 in the above referred writ proceedings relating to another public sector undertaking, viz., FACT, that the restrictions of freezing of DA as per Ext.P-1 herein will apply only in the case of executives and non-unionized supervisors of CPSEs, going by the terms and conditions in Ext.P-1 as well as on the basis of the categorically declared stand of the Union Government as apprised to this Court, which is referred to in para 5 of the said judgment. Thereafter, subsequently, the respondent Union Government themselves have issued Ext.P-2 OM dated 8.1.2021 making clear like the day light that the restrictions of freezing of DA ordered, as per Ext.P-1 OM dated 19.11.2020, shall apply only in the case of executives and non-unionized supervisors of the CPSEs and not in relation to any other categories of employees, including workmen of CPSEs. Similarly situated central public sector oil companies like IOC, HPCL, etc. have complied with the directives of the Union Government as per Ext.P-2 OM dated 8.1.2021 by issuing Exts.P-3 and P-4 proceedings dated 25.1.2021, releasing the withheld and frozen DA benefits to the workmen personnel of their establishments. Therefore, the continued insistence of the respondent BPCL to enforce Ext.P-1 restrictions even after the issuance of Ext.P-2 OM dated 8.1.2021, is a matter which would be a grievance of the appellants who are representing the workmen, which is predominantly and pre-eminently a public law cause of action. True that the appellants have raised contentions that the impugned action of the respondent BPCL could be in violation of Sec. 9A of the ID Act as well as would be a breach of the settlement, etc. to highlight their case that the impugned action of the respondent BPCL is also a violation of the ID Act. Merely because they have raised such contentions will not take away the substantial nature of the grievance in this case as a public law cause of action for which public law remedy invocation could be examined appropriately, subject to establishment of successful grounds in that regard.

34. This is all the more so, in view of the indisputable aspect that Exts.P-1 & P-2 have been issued by the respondent Union Government, which is “State” as per Article 12 of the Constitution of India, and as the respondent BPCL is an “other authority” as per the definition of “State” as per Article 12 thereof. So, we are firmly of the view that, in view of the strong public law element involved in these matters and as the grievance of the petitioners would predominantly fall within the zone of public law cause of action, we have to entertain this case to examine whether the grounds for invoking the public law remedy of judicial review have been successfully made out in this case. So also, as has been held by the Apex Court that it is trite that the exceptions to the rule that contract of personal service cannot be enforced, are as follows:

(i) when an employee is a public servant working under the Union of India or State;

(ii) when an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and

(iii) when an employee is “workmen” within the meaning of Section 2(s) of the I.D. Act, etc.

[see K.K.Saksena v. International Commission on Irrigation & Drainage and Ors. [(2015) 4 SCC 670, and Maharashtra State Coop. Housing Finance Corpn. Ltd. v. Prabhakar Sitaram Bhadange, (2017) 5 SCC 623]

In para 52 of the the decision in K.K.Saksena's case [(2015) 4 SCC 670] the Apex Court has held that in the aforementioned first two cases, the employment ceases to have private law character and then “status” to such an employment is attached, etc.

35. In a case where the employer is “State” within the meaning Art.12 of the Constitution of India and the employee would also satisfy the definition of “workman” as per Sec. 2(s) of the I.D.Act, then it is for the court exercising judicial review to consider the facts and circumstances of the case and then decide as to whether discretionary public law remedial jurisdiction is to be invoked or whether the parties are to be relegated to the alternative remedy as per the ID Act.

36. It is clearly admitted by the respondent BPCL in their counter affidavit, more particularly in paras 11 & 12 thereof, that they have taken the impugned action to restrict and freeze the DA admissible and payable to the workmen category only on the basis of Ext.P-1 O.M. dated 19.11.2020 issued by the respondent Union Government. The contention of the respondent BPCL is that, since such DA changes will not conflict with the overall pay structure, as conceived in Clause 12(d) of the Memorandum of Settlement, such restriction of D.A. is justifiable, and that it is all the more so since most of the benefits admissible to the workmen category are broadly on the basis of parity principles, vis-a-vis such benefits otherwise payable to managerial staff, etc. and that therefore, if the appellants have any dispute regarding restriction and freezing of DA components as above, then it is for them to work out their remedies in accordance with Clause 50 of the Memorandum of Settlement by approaching the machinery under the Industrial Disputes Act, 1947.

37. Incidentally, a contention is also raised that the workmen are also estopped from contending that only the norms issued by the Union Government, which are advantageous alone, can be invoked in the case of workmen category, and that both advantageous and disadvantageous norms could be pressed into service appropriately. Prima facie, we are of the view that if the subsequent norm, as per Ext.P-2 dated 8.1.2021, has not been issued by the respondent Union Government, then the respondent BPCL could have raised the abovesaid pleas on a strong basis. On and with effect from the issuance of the subsequent norm as per Ext.P-2 dated 8.1.2021 issued by the respondent Union Government, ordering and declaring in no uncertain terms that the restriction of freezing of DA in terms of Ext.P-1 cannot be made applicable to the workmen category and the same may be attributable only to executives and non-unionized supervisors of Central PSUs. What is involved thereafter is a paradigm shift in the scenario. The respondent BPCL does not even for a moment contend that the Union Government has no competence to issue a subsequent norm as per Ext.P-2 dated 8.1.2021. On the other hand, the specific case of the respondent BPCL is that they have taken the impugned action only on the basis of the initial norm as per Ext.P-1 issued by the respondent Union Government. When no dispute whatsoever has been raised by the respondent BPCL as to the jurisdictional competence of the respondent Union Government to issue Ext.P-2 O.M. dated 8.1.2021 and when the very basis of the impugned action is on the basis of the directives issued by the Union Government as per Ext.P-1 dated 19.11.2020 and later, when the very same authority (Union Government) issued subsequent norm as per Ext.P-2 dated 8.1.2021, then the continued insistence by the respondent BPCL to freeze the DA on the basis of Ext.P-1 norms, as far as the workmen category personnel is concerned, would be nothing but rank unreasonableness, arbitrariness and capriciousness. There is no dispute that similarly situated Central Public Sector Oil Companies like Indian Oil Corporation (IOC), The Hindustan Petroleum Corporation Limited (HPCL) etc. had also taken the similar stand initially on the basis of Ext.P-1, as far as the workmen category is concerned and later, immediately after the issuance of Ext.P-2 O.M. dated 8.1.2021, the IOC and the HPCL have issued rectificatory and remedial measures as per Exts.P-3 & P-4 issued on 25.1.2021 reversing the stand and releasing the withheld DA benefits to their workmen concerned.

38. The respondent BPCL does not even have a whisper of a pleadings anywhere in the counter affidavit regarding the issuance and impact of Ext.P-2 O.M. dated 8.1.2021. The respondent BPCL has not even raised any plea either in the writ proceedings stage or in the present appellate stage, that they have got any approval from the respondent Union Government for the continued enforcement of Ext.P-1 norms as far as the workmen category personnel is concerned, even after the issuance of Ext.P-2 O.M. dated 8.1.2021. When the very inception of the impugned action was on the basis of Ext.P-1 executive order issued by the Union Government, the minimal norms of reasonableness and fairness would demand that the respondent BPCL, which is legally expected to be a model public sector employer, should have complied with and obeyed the directives of the respondent Union Government as per Ext.P-2 dated 8.1.2021. So, we are of the firm view that the continued insistence of the respondent BPCL to enforce freezing of DA of the workmen category on the basis of Ext.P-1, even after the issuance of Ext.P-2, would be illegal, ultra vires and would also be unreasonable and arbitrary and thus, would be in violation of the principles of reasonableness and fairness enshrined in Articles 14 & 16 of the Constitution of India. Possibly, the state of affairs would have been otherwise, if Ext.P-2 subsequent norms had never been issued or if the respondent BPCL could get approval from the respondent Union Government for the continued insistence of Ext.P-1 norms to the workmen category, even after the issuance of Ext.P-2.

39. It is trite and well established that the same does not require the citation of any judicial authority that a public sector undertaking like the respondent BPCL, which is fully owned by the Government of India, has to be a model employer. Therefore, we are firmly of the view that the abovesaid objections of the respondent BPCL regarding their justification for initially invoking Ext.P-2 norms to the workmen category, on the basis of the aspects borne out from Clause 12(d) of the memorandum of settlement and about relegating the appellants to the ID Act remedy etc., possibly could have been tenable, in the absence of issuance of Ext.P-2 O.M. But, once Ext.P-2 OM has been issued, then there is a paradigm or tectonic shift of the scenario, and since the very inception of the impugned action of the respondent BPCL, is on the basis of Ext.P-1 norms, then the minimum norms of reasonableness, fairness and propriety would require that a model public sector employer like the respondent BPCL should have complied with the directives of the Union Government as per Ext.P-2, as has been done by similarly situated Central Public Sector Oil Companies like IOC, HPCL, etc.

40. We are not impressed with the argument advanced before us on behalf of the respondent BPCL that even after the issuance of Ext.P-2 O.M., the continued insistence for enforcement of Ext.P-1 norms, as far as the workmen category is concerned, is justified going by Clause 12(d). In that regard the learned Advocates appearing for the appellants have strongly urged that the abovesaid contention raised by the respondent BPCL that the variation of D.A. based on Ext.P-1 guidelines meant for executives and non unionized supervisors, are not in conflict with the overall pay structure, etc. is not correct. To the above, the learned Senior Counsel for the respondent BPCL would strongly urge that freezing of DA in terms of Ext.P-1 O.M. would not be in conflict with the overall pay structure, as conceived in Clause 12(d).

41. We would assume that the abovesaid assertion made by the respondent BPCL regarding the non-conflict with the overall pay structure is correct. If that be so, then prima facie the abovesaid objections would have been tenable in the absence of issuance of the subsequent norms at Ext.P-2. Once Ext.P-2 norms have been subsequently issued and so long as the jurisdictional competence of the respondent Union Government to issue Ext.P-2 norms is not in dispute, then the respondent BPCL should have complied with Ext.P-2, unless they have secured approval from the respondent Union Government for the continued insistence of Ext.P-1, as far as the workmen category is concerned, even after the issuance of Ext.P-2.

42. Secondly, we feel that the abovesaid contention raised by the respondent BPCL to justify the continued insistence of Ext.P-1 norms, even after the issuance of Ext.P-2, is an argument only for the sake of justifying the impugned action at any cost, and that therefore, by virtue of Clause 12(d) and Clause 50 of the Memorandum of Settlement, the appellants should be relegated to the ID Act remedy, etc. is only an argument for the sake of justifying the impugned action and to evade their liability.

43. Assuming that, if the initial action of the respondent BPCL on the basis of Ext.P-1, is otherwise justifiable in terms of Clause 12(d) of the Memorandum of Settlement, then there cannot be any doubt that subsequent guidelines of the respondent Union Government as per Ext.P-2 dated 8.1.2021 is also a guideline of the Government of India, within the meaning of Clause 12(d). That being so, the respondent BPCL was obliged to comply with the requirements of Ext.P-2 norms in any view of the matter. Further, the contentions raised on behalf of the respondent BPCL, on the basis of estoppel and the parity principles of wage structure and benefits of workmen vis--vis the managerial staff etc., could have been tenable, if the impugned restriction and freezing of DA was done by the respondent BPCL independently and de hors Ext.P-1 or if due approval had been secured from the respondent Union Government, even after the issuance of Ext.P-2. Hence, we are not impressed with the abovesaid arguments raised by the respondent BPCL on the basis of estoppel, pay parity principles, etc. Further, for arriving at these conclusions in the adjudication in the public law remedy, we have not relied on any materials other than the one admitted by both sides in the abovesaid writ proceedings. So, we are of the view that the abovesaid conclusions can be arrived at by a writ court without any resolution of any disputed questions of fact, and the abovesaid plea made by the respondent BPCL about the requirement of taking evidence for resolving this issue, is not relevant as far as the invocation of public law remedy is concerned and we overrule the said objection.

44. There is no dispute to the basic proposition argued by Sri.J.Cama, learned Senior Counsel appearing on behalf of the respondent BPCL, that where alternative efficacious remedy is feasible, in terms of the Industrial Disputes Act, then ordinarily, writ remedy may not be invoked. This is all the more so, where disputed questions of fact are also there. However, it is also equally a valid preposition of law that there is no absolute bar in the invocation of the public law remedy in judicial review under Article 226 of the Constitution of India, and in a case, which involves strong public law element, and where the grievance projected is the one which would predominantly fall within the zone of a public law cause of action, then the public law remedy of judicial review could be invoked in appropriate cases, but subject to the parties successfully establishing grounds for invoking such public law remedy.

45. In the decision in Indian Petrochemical Corporation Ltd. & Ors. v. Shramik Sena & Ors. [(1999) 6 SCC 439] [IPCL's case] the Apex Court has dealt with SLP/Civil Appeal, which arose out of the impugned order dated 29.8.1999, rendered by the Bombay High Court in Writ Petition, W.P.No.2206 of 1997, filed by the respondent therein/Shramic Sena & another, on behalf of the workmen as well as other Civil Appeal filed by the workmen against the abovesaid order of the Bombay High Court and both the appeals were heard together. The workmen had filed the abovesaid Writ Petition before the Bombay High Court for a declaration that the workmen, whose names are shown in Ext.A annexed in the said Writ Petition, are regular workmen of the management and are entitled to have the same pay scales and service conditions as are applicable to regular workmen of the management and further that direction should be given to the management to absorb the said workmen w.e.f. the actual date of their entering into the service of the canteen of the management and pay them all consequential benefits, including arrears of wages, etc. The Bombay High Court as per the impugned judgment therein upheld the contentions of the workmen that in all establishments, where canteens are maintained, as a requirement of a statute as in Sec.46 of the Factories Act, the workmen working in the said canteen ipso facto became the regular workmen of the management and accordingly, the Bombay High Court allowed the writ petition, holding that since the workmen are working in the statutory canteen of the management, they are entitled to be absorbed in the employment of the said management. Certain directions were also given by the Bombay High Court as can be seen from para 8 in IPCL's case supra. The matters were later referred by the Division Bench of the Apex Court to a 3-Judge Bench. When the matters were taken up for final hearing by the Apex Court on 8.4.1999, the workmen had placed reliance on an additional affidavit dated 19.2.1999 filed on their behalf, to which no reply was filed by the management and hence time was also granted to the management to file their reply thereto. Various contentions were urged on behalf of the employer (IPCL) as can be seen from para 12. It was argued that since the IPCL is an instrumentality of the State, whose recruitment is governed by various reservation orders and its own recruitment policy, such norms would be violated, if the impugned directions of the Bombay High Court order were implemented as the workmen are not in the employment of the management, being the workmen of the contractor, who is running the canteen. Various contentions are advanced on behalf of the workmen as can be seen from para No.13 including the contention that the canteen was being run by the contractors appointed by the IPCL, the said canteen facility was mandatory in view of the provisions contained in the Factories Act and therefore the employment of the workmen was in a statutory canteen attached to the IPCL, which is an instrumentality of the State.

46. The Apex Court also noted in para No.25 of the said decision that the employer has contended therein that the continuity of employment of the employees had to be effected, in spite of change of contractors, was due to an order made by the Industrial Court, Thane, Bombay on 10-11-1994 wherein the Industrial Court held that the workmen involved therein are entitled to continuity of service in the same canteen, irrespective of the change in contractor and that consequently, a direction was issued to the Management therein to incorporate appropriate clauses in the contract that may be entered into with any outside contractor to ensure the continuity of employment of these workmen. The management thus contended that the continuous employment of those workmen was not voluntary action of the management, but only on account of the abovesaid award of the industrial court. The Apex Court also noted that a perusal of the award/order of the Industrial Court disclosed that these workmen had contended before the said Court that the Management was indulging in an unfair labour practice and that in fact they were employed by the company. The Industrial Court accepted the contention of the workmen and gave the earlier order dated 10.11.1994, for continuity of service. The Apex Court noted that the employer never found it appropriate to challenge the abovesaid award of the industrial court, rendered on 10.11.1994, which had become final. On this basis, the Apex Court inferred that the management has accepted, as a matter of fact, that the respondent workmen are permanent employees of the Management's canteen, etc. After exhaustive consideration of the various aspects of the matter, the Apex Court has thereafter concluded that the impugned judgment of the Bombay High Court therein does not require any interference and more over, the appellant IPCL therein is an instrumentality of the State, as per Art.12 of the Constitution of India and has an obligation to conform with the requirements in Arts.14 and 16 of the Constitution of India. In para 24 of the decision in IPCL's case supra, the Apex Court has categorically held that for resolving the issue as to whether the workmen of the canteen are in fact employees of the management for all purposes, ordinarily would have been a matter, which would require decision by a fact finding Tribunal, however, that as the parties have filed detailed affidavits and documents in that case and since the pleadings and materials are sufficient to decide the question without need for any oral evidence, the matter could be adjudicated on merits in judicial review, etc. It will be pertinent to refer to the contents of paras 24 and 29 of the abovesaid judgment of the Apex Court in IPCL's case supra [(1999) 6 SCC 439,p.449, 451], which read as follows:

“24. Before answering this question, we would like to observe that, normally, this being a question of fact, this Court would have been reluctant to examine this question which in the ordinary course should be first decided by a fact-finding tribunal. However, as stated above, in this case parties have filed detailed affidavits and documents which, in our opinion, are sufficient for us to decide this question without the need for any oral evidence.

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29. In this appeal, the workmen have questioned the conditions that have been imposed by the High Court while directing regularisation of the workmen. They contend that once the Court comes to the conclusion that the workmen are in fact the employees of the Management, there is no occasion to impose these conditions. We are unable to agree with this argument. It should be borne in mind that the initial appointments of these workmen are not in accordance with the rules governing the appointments or the established policy of recruitment of the Management. The said recruitments could also be in contravention of the various statutory orders including the reservation policy. Further the respondent is an instrumentality of the State and has an obligation to conform to the requirements of Articles 14 and 16 of the Constitution. In spite of the same the services of the workmen are being regularised by the Court not as a matter of right of the workmen arising under any statute but with a view to eradicate unfair labour practices and in equity to undo social injustice and as a measure of labour welfare. Therefore, it is necessary that in this process suitable guidelines or conditions be laid down at the time of courts issuing directions to regularise the services of the workmen so concerned depending upon the facts of each case. This Court has consistently followed this practice in the earlier cases of regularisation and we do not find any reason to differ from the same. For the aforesaid reasons, this appeal also fails and the same is dismissed but with costs.”

47. The Apex Court has thus categorically held in IPCL's case supra [(1999) 6 SCC 439] that ordinarily the said matter would have required resolution of the question of fact regarding the employment status of the canteen by an expert Tribunal for adducing evidence, but that since affidavits and materials produced in the said writ litigation proceedings were sufficient, adjudication could be made in judicial review. Moreover, the Apex Court has categorically declared in para No.29 of the said decision that since employer therein is an instrumentality of the State, they are obliged by the norms of the Constitution to conform fully to the discipline of Part III of the Constitution of India, including Arts.14 and 16 thereof and hence, interference could be made on that ground as well.

48. In the present case, we are of the firm view that the abovesaid dictum laid down by the Apex Court would certainly apply to the facts of this case for reasons for more than one. There is no dispute that the respondent BPCL is an instrumentality of the State within the meaning of Art.12 of the Constitution of India. Respondent Union Government, who has issued Exts.P1 and P-2 undoubtedly is “State” within the meaning of Art.12. We have not relied on any materials other than the pleadings and materials admitted by both sides in this case, for arriving at the abovesaid conclusion in the adjudication of public law remedy for resolving the issues raised in this case. The contention of the respondent BPCL about the imperativeness and high necessity for adducing evidence, is not relevant or tenable, as far as resolution of the issues in public law remedy in judicial review involved in this case is concerned. That apart, the Apex Court has held that even if there are disputed questions of facts, if the affidavits and materials are sufficient to determine the issue, then notwithstanding alternative remedy, as in the Industrial Disputes Act, judicial review remedy could be appropriately invoked by writ courts. More crucially, the Apex Court has declared in no uncertain terms that if the employer is an instrumentality of the State, as per Art.12 of the Constitution of India, then they are bound to conform fully to the rigour discipline of the mandate contained in Part III of the Constitution of India, more particularly Arts.14 and 16 thereof. We have already held that the impugned action of the respondent BPCL would be in patent violation of the minimum concept of reasonableness and fairness emanating from Arts.14 and 16 of the Constitution of India. Since respondent BPCL is an instrumentality of the State as per Art.12 of the Constitution of India, they are bound to obey the mandate of the discipline enshrined in Part III of the Constitution including Arts.14 and 16.

49. True that some of the contentions urged by the appellants are based on violation of the provisions in the Industrial Disputes Act. That by itself would not be a bar for considering the issue as to whether public law element is disclosed in this case and as to whether the grievance of the appellants would predominantly fall within the scope and ambit of a public law cause of action warranting invocation of public law remedy of judicial review, provided that successful grounds are made out for invoking such remedy.

50. Sri.J.Cama, learned Senior Counsel appearing for the respondent BPCL has advanced an argument that the ratio decidendi laid down by the Apex Court in IPCL's case supra [(1999) 6 SCC 439] cannot be imported to the facts of this case as the matter had come up before the Apex Court from an original order of the industrial Tribunal and hence there was no challenge in the maintainability of the writ proceedings therein. We are not impressed with the said argument advanced by the learned Senior Counsel. A reading of the abovesaid judgment of the Apex Court in IPCL's case supra [(1999) 6 SCC 439] would make it clear that the subject matter of the challenge in the said SLPs/Civil Appeals was the impugned judgment/order dated 29.8.1997 rendered by the Bombay High Court in WP No.2206/1997 filed on the basis of the workmen. One of the said civil appeals was filed before the Apex Court by the IPCL management, whereas the other civil appeal was filed by the workmen. The main prayer raised by the workmen in the Writ Petition filed before the Bombay High Court was that though they are workers of the contractor of the canteen, in fact they have been treated as regular employees of the IPCL and that they should be regularised and that they should be given parity of wages with the regular employees of the IPCL, etc. The said plea was allowed by the Bombay High Court as per the impugned judgment. The matter was taken up in civil appeal. The abovesaid judgment of the Bombay High Court was challenged before the Apex Court. Incidentally, their Lordships of the Apex Court have noted in para 25 of the said decision that earlier the employees could secure an award from the Industrial Court, Thane, Bombay, on 10.11.1994, whereby the contractor was directed to ensure continuity of employment to the contract workers and the management was also directed to incorporate necessary clause in the contract in that regard for ensuring continuity. The said award of the industrial court was never challenged by the employer, which has become final. Hence the Apex Court held that the said conduct of the employer would clearly lead to the inference, as a matter of fact, that the management has accepted that the workmen are in fact permanent employees of the management's canteen and that therefore, this clearly shows the true nature of the employment of the workmen. A reading of the abovesaid judgment in IPCL's case supra [(1999) 6 SCC 439] would make it clear that the abovesaid award/order dated 10.11.1994 of the Industrial Court, Thane, was never challenged in the abovesaid civil appeal before the Apex Court. So also, the subject matter of challenge in the civil appeals before the Apex Court was only the impugned judgment rendered by the Bombay High Court in the Writ Petition and not the award of the industrial court. The said industrial court award has become final and that was also one of the circumstances that was taken into account by the Apex Court for inferring that the workmen are permanent workers of the IPCL canteen. Merely because an earlier unchallenged award of the industrial court is referred to in para 25 of the IPCL case supra [(1999) 6 SCC 439] is no manner suggestive that what was under challenge before the Apex Court was the abovesaid award/order of the industrial court. Hence, the abovesaid submission made on behalf of the respondent BPCL appears to be factually incorrect and hence, we are constrained to reject the abovesaid contention of the learned Senior Counsel appearing for the respondent BPCL.

51. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., [(2004) 3 SCC 553] it has been held in para 19 thereof that in view of the enunciation of the position of law referred to in that judgment, merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit and that in the case in Gunwant Kaur v. Municipal Committee Battinda [(1969) 3 SCC 769], the Apex Court has even gone to the extent of holding that in a writ petition, if the facts require, even oral evidence can be appropriately taken and that this clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. It will be pertinent to refer to para Nos.19 and 27 of the abovesaid decision of the Apex Court in ABL International Ltd's case supra [(2004) 3 SCC 553], which read as follows:

“19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.

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27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetary claim is also maintainable.”

Various decisions relied on by the Apex Court for arriving at the conclusions in para No.19 of ABL International Ltd's case supra [(2004) 3 SCC 553] are referred to in previous paragraphs thereof, more particularly paras 9 to 18 thereof and there is no necessity to quote those paragraphs. In the present case, we have already held that there is no necessity for adducing of any oral evidence. The grievance projected by the appellants would essentially fall within the ambit of public law cause of action and therefore, invocation of public law remedy proceedings, at the discretion of the writ court is appropriate, fair and just in the facts and circumstances of the case. It has to be borne in mind that the workmen who would be detrimentally affected by the impugned action, is quite large in number and the restrictions were initially imposed in the wake of Covid-19 pandemic issues. But after the issuance of subsequent norms as per Ext.P-2, there cannot be any justification to continue to impose any detrimental conditions on workmen, who belong to the lower strata of the society and economy. The impugned action emanated out of the executive order issued by the respondent Union Government, even though the said order itself made it clear that the same applies only to executives and non unionized supervisors. The Union Government has categorically declared its stand before this Court, as can be seen from para No.5 of the common judgment dated 17.12.2020 in W.P.(C).Nos. 27918/2020 and 26423/2020. The abovesaid judgment of this Court was rendered on 17.12.2020, which is even before the issuance of Ext.P-2 OM dated 8.1.2021. The same stand of the respondent Union Government, regarding the nonapplicability of DA restrictions, has again been apprised by the respondent Union Government, as can be seen from para No.4 of the statement dated 3.3.2022 filed on behalf of the 1st respondent Union Government in W.A.No.750/2021. Prima facie, the abovesaid objections of the respondent BPCL would have been tenable, if Ext.P- 2 norms had not been issued. With the issuance of Ext.P-2 norms, there is a tectonic shift in the entire scenario and therefore we have been constrained to hold that the continued insistence of the restrictions in Ext.P-1 even after the issuance of Ext.P-2, would be illegal, unreasonable and unfair and would also be in violation of Arts.14 and 16 of the Constitution of India.

52. In the case in Chennai Port Trust v. Industrial Employees Canteen Workers' Welfare Assn., [(2018) 6 SCC 202], the Apex Court has placed reliance on the abovesaid decision on their earlier decision in IPCL's case supra [(1999) 6 SCC 439]. Therein the Apex Court has specifically overruled the contentions of the Chennai Port Trust (Employer) that the workmen therein should have relegated to the remedy as per the ID Act, as can be seen from a reading of that decision. It will also be relevant to note the dictum laid down in the decision of the Apex Court in Maharashtra Chess Assn. v. Union of India, [(2020) 13 SCC 285], (paras 13 to 20, 22 etc.)

53. True that the matter could be referred for adjudication to a forum like the Labour Court/ Industrial Tribunal, as the case may be, in terms of the Industrial Disputes Act, 1947. That by itself will not fetter or be an absolute bar in the exercise of the discretionary jurisdiction under Art.226 of the Constitution of India in view of the dictum laid down by the Apex Court in the decisions as in ABL International Ltd's case supra [(2004) 3 SCC 553].

54. Radha Krishan Industries v. State of H.P. & Ors, (2021) 6 SCC 771, is one of the latest decisions of the Apex Court on the abovesaid issue, wherein their Lordships of the Supreme Court have dealt with the issues relating to availability of alternative statutory remedy and invocation of discretionary writ jurisdiction under Art.226 in paras 27 and 28 thereof. It may be pertinent to refer to paras 27 and 28 of the abovesaid decision in Radha Krishan Industries's case [(2021) 6 SCC 771, p.795], which read as follows:

“27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.

27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.

27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad [Chand Ratan v. Durga Prasad, (2003) 5 SCC 399], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of India [Rajasthan SEB v. Union of India, (2008) 5 SCC 632] among other decisions.”

55. A D

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ivision Bench of this Court in a recent common judgment rendered on 7.4.2022 in W.A.No.408/2022 & connected cases reported in Chengalam Service Co-operative Bank Ltd. v. Rajkumar & Ors. [2022 (3) KHC 185], after placing reliance on various decisions of the Apex Court as in Thansingh Nathmal v. Superintendent of Taxes, [AIR 1964 SC 1419], Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, [(1998) 8 SCC 1: AIR 1999 SC 22], Balkrishna Ram v. UOI, AIR 2020 SC 341, UOI v. T.R.Varma [AIR 1957 SC 882], etc. has categorically held in para No.17 thereof that the rule of alternative remedy in consideration of the invocation of writ jurisdiction, is only a rule of discretion and not a rule of jurisdiction and that merely because the High Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. Further that there may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed and one must also remember that the alternative remedy must be efficacious and that therefore, it is for the High Court to decide on the facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not and there cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petition, which will go against the legal position settled by the Larger Bench of the Apex Court in the celebrated case in L.Chandra Kumar v. Union of India, [AIR 1997 SC 1125] wherein it has been held that the power of judicial review invested with the High Court under Art.226 of the Constitution of India cannot be abridged even through an amendment of the Constitution, as the power of judicial review under Art.226 would form a component of the basic structure of the Constitution, etc. Further, decisions of the Apex Court as in LIC of India v. D.J.Bahadur & Ors. [1981 (1) SCC 315] (3-Judge bench), Karnataka State Road Transport Corporation (KSRTC) v. KSRTC Staff & Workers' Federation & Anr. [1999 (2)] SCC 687] are cases, in which judicial review proceedings have been initiated and adjudicated on merits in respect of the issues of settlement arrived at as per the ID Act. 56. The learned Senior Counsel appearing for the BPCL has also placed reliance on a judgment dated 25.10.2018 of a learned Single Judge of this Court in W.P.(C).No. 26471/2018 in the case Surendran Nair P.N. v. Chairman & MD, BPCL & Ors. [Manu/KE /4094/2018 = 2018 (5) KHC 712], which dealt with the issue relating to the dismissal of a workman of the respondent BPCL. A reading of the said judgment would indicate that the learned Single Judge of this Court has held in para No.47 thereof that the Writ Petition is maintainable, but has held therein that, in view of the nature of the factual grievance in that case, the remedial mechanism provided under the I.D. Act as per the provisions in Sec.11A cannot be replicated in writ proceedings and, therefore the parties were relegated to the Industrial Tribunal. 57. As noted herein above, the rule of alternative remedy in writ proceedings is not a rule of jurisdiction, but only a rule of prudent exercise of discretion. So, it is essentially for the court exercising the powers of judicial review to consider the facts and circumstances of the case and then to decide whether the discretionary remedy under Art.226 of the Constitution of India is to be exercised on merits or whether the parties are to be relegated to the alternative remedy. 58. In the above Writ Petition, except the lead case, challenge has also been made as against the former OM dated 19.11.2020. We are of the view that there is no necessity for us to consider the said plea for quashment of the said OM dated 19.11.2020. It is the admitted case of both sides that subsequent OM in terms of OM dated 8.1.2021, has been issued by the respondent Union Government. Hence, there is no necessity or relevance to consider the challenge as against the former OM dated 19.11.2020. 59. Sri.J.Cama, learned Senior Counsel has advanced yet another contention on behalf of the respondent BPCL that a reading of the impugned judgment rendered by the learned Single Judge in the present case would clearly indicate that the only contention urged and considered by the learned Single Judge was regarding the availability of alternative remedy in terms of the I.D. Act and as to whether the writ jurisdiction is to be invoked, etc. and that thus the petitioners have not raised any contentions regarding the merits of the issue for the invocation of the public law remedy of judicial review in this case. 60. Per contra, Sri.P.Ramakrishnan, Sri.Rajesh Nair and Sri.C.S.Ajith Prakash, learned Advocates appearing for the appellants in these cases would vehemently and strongly urge that they have raised the abovesaid contention based on the latter OM dated 8.1.2021 and its impact and also about the impact of the common judgment dated 17.12.2020, rendered by this Court in W.P.(C).Nos. 27918 and 26423 of 2020 etc. and that merely because their contentions have not been answered in the impugned judgment, does not lead to the situation that they have not made such submissions. Further, the learned Advocates appearing for the appellants would strongly urge that, on the other hand, a reading of the counter affidavit filed by the respondent BPCL at the W.P.(C). stage would clearly indicate that not even a whisper of any submissions or contentions have been made by the respondent BPCL therein regarding even the issuance or the impact of the latter OM dated 8.1.2021, which has been produced in all the three W.P.(C)s. Further that para No.3 of the impugned judgment of the learned Single Judge in this case would clearly indicate that the contention of the petitioners on the basis of the latter OM dated 8.1.2021 has been clearly recorded therein and also their contentions regarding the non justifiability of the impugned action to continue to insist on the former OM even after the issuance of the latter OM, etc. are stated therein. But that the learned Single Judge has not addressed the abovesaid strong contentions urged by the petitioners in the impugned judgment and has, without considering the impact of the latter OM dated 8.1.2021, straightaway come to the conclusion that it is for the petitioners to seek alternative remedy under the ID Act. After hearing both sides we see from a reading of para No.3 of the impugned judgment in this case that the matters relating to the issuance and impact of the latter OM dated 8.1.2021 have indeed been raised by the petitioners before the learned Single Judge and so also, their contentions regarding non justification of the impugned action to insist on the former OM dated 19.11.2020, even after the issuance of the latter OM dated 8.1.2021, are also recorded in para No.3. Therefore, we are constrained to overrule the abovesaid submission made on the basis of the respondent BPCL. That apart, in a matter like this, involving livelihood of various workmen of a central public sector enterprise, we feel that once it is established that there is a strong public law remedy component to the matter, notwithstanding other contentions based on violation of the ID Act, then writ court could exercise its discretion to consider the merits of the matter as to whether or not successful grounds for invoking the public law remedy of judicial review under Art.226 of the Constitution of India are made out in the writ proceedings. 61. Further we are of the view that the contentions raised by the respondent regarding the non-impleadment of the competent and administrative Ministry (Ministry of Petroleum & Natural Gas) is not tenable or relevant. Exts. P-1 and P-2 OMs have been issued by the respondent Union Government in the Department of Public Enterprises who has been made a party. The competent authority of the Union Government has declared the stand clear before this Court in no uncertain terms, as can be seen from a reading of para No.5 of common judgment dated 16.3.2021 in W.P.(C).Nos. 5069, 5391 and 5641 of 2021, as well as the same stand has been retained by the Union Government in the para No.4 of the statement dated 3.3.2021 filed by them in the instant W.A.No.750/20221. Hence the non impleadment of the administrative Ministry concerned is not a vital or material defect and the said objection will stand overruled. 62. In the light of the above aspects, we are of the firm view that the above crucial and relevant aspects of the matters have not been considered in its proper perspective by the learned Single Judge in the rendering of the impugned common judgment in these cases. Hence the impugned common judgment dated 16.3.2021 rendered by the learned Single Judge dismissing the above W.P.(C)s. will stand set aside. It is declared and made clear that the impugned action of the respondent BPCL in continuing to insist the restrictions on freezing of DA to the workmen category personnel on the basis of Ext.P-1 OM dated 19.11.2010 even after the issuance of Ext.P-2 OM dated 8.1.2021 is illegal, ultra vires, unreasonable and also would amount to patent violation of Arts.14 and 16 of the Constitution of India. It appears from the pleadings and materials on record that the withheld/frozen DA benefits is only for the period of 9 months (1.10.2020 to 30.6.2021). The said frozen/withheld DA benefits shall be released to the benaficiary workmen of the Kochi Refinery by the respondent BPCL without any further delay, at any rate, within two months from the date of receipt of a certified copy of this judgment. With these observations and directions, the above Writ Appeals (Civil) will stand finally disposed of. However, there will be no order as to costs.
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