Introduction:

In Madhwi Jha and Others v. Patna University and Others (Civil Writ Jurisdiction Case No. 18289 of 2015), the Patna High Court, speaking through Justice Alok Kumar Sinha, delivered an important ruling on the limits of employer power in cases involving employee participation in strikes, particularly within public educational institutions. The writ petition was filed by several employees of Magadh Mahila College, a constituent college of Patna University, who challenged an office order terminating their services on the ground that they had participated in an employees’ union strike between 10 August 2015 and 9 September 2015. The impugned termination order was issued allegedly on telephonic instructions of the Vice-Chancellor, without issuance of any show-cause notice, without framing of charges, and without holding any domestic enquiry. The petitioners contended that the action was arbitrary, stigmatic, violative of principles of natural justice, contrary to a binding settlement that had concluded the strike, and illegal under the Industrial Disputes Act, 1947. The High Court, after examining maintainability, statutory protections, constitutional guarantees, and settled service jurisprudence, set aside the termination order and directed that the petitioners be treated as continuing in service with full continuity, thereby reinforcing that participation in a strike, by itself, cannot automatically justify termination of service.

Arguments:

The petitioners argued that the impugned termination order was ex facie illegal, arbitrary, and unconstitutional, as it was passed solely on the allegation that they had participated in a strike, without any finding that the strike was illegal or that their conduct amounted to misconduct. It was submitted that the strike in question culminated in a formal settlement dated 8 September 2015, which was approved by the Vice-Chancellor on 9 September 2015, and which explicitly provided that no adverse action would be taken against employees for their participation in the strike. Once the competent authority had approved the settlement, the respondents were estopped from reopening the issue or penalising the petitioners for conduct that stood condoned. The petitioners contended that termination on this ground amounted to a stigmatic dismissal, as it branded them as guilty of misconduct, and therefore could not have been effected without adherence to due process, including issuance of a show-cause notice, framing of charges, and conduct of a proper domestic enquiry. It was further argued that even if the respondents attempted to characterise the action as a termination simpliciter or disengagement of daily wagers, the substance of the action was punitive, attracting the safeguards of both service law and labour law. The petitioners also submitted that the termination amounted to “retrenchment” under Section 2(oo) of the Industrial Disputes Act, 1947, and having been effected without compliance with the mandatory conditions of Section 25-F, including notice and compensation, was void ab initio. They highlighted that the selective termination of the petitioners, despite their long years of service, while retaining other similarly placed employees, violated the principle of “last come, first go” and offended Articles 14 and 16 of the Constitution. On maintainability, the petitioners contended that relegating them to the remedy under the Industrial Disputes Act would not be efficacious in the facts of the case, as the termination was patently arbitrary, suffered from jurisdictional error, and involved gross violation of natural justice, thereby justifying invocation of the High Court’s writ jurisdiction under Article 226.

The respondents, on the other hand, argued that the writ petition was not maintainable in view of the alternative remedy available under the Industrial Disputes Act, 1947, and that the petitioners ought to have approached the labour forum instead of invoking the extraordinary jurisdiction of the High Court. On merits, it was contended that the petitioners had remained absent from duty during the strike period and that such prolonged absence justified discontinuation of their services, particularly as they were not permanent employees. The respondents sought to characterise the impugned order as a termination simpliciter, arguing that it did not cast any stigma and therefore did not require a disciplinary enquiry. They further contended that participation in a strike disrupts academic functioning and administrative discipline, and that the employer was entitled to take action to maintain institutional order. It was also suggested that the petitioners could not claim parity with other employees, as each engagement was governed by its own terms and conditions. The respondents denied any violation of constitutional or statutory provisions and maintained that the termination was justified in the interest of the institution.

Court’s Judgment:

The Patna High Court rejected the preliminary objection on maintainability and held that the writ petition was maintainable despite the availability of an alternative remedy under the Industrial Disputes Act, 1947. The Court reiterated that the rule of exhausting alternative remedies is one of discretion and not an absolute bar, and that writ jurisdiction can be exercised where the impugned action is arbitrary, suffers from jurisdictional error, or violates principles of natural justice. In the present case, the Court found that relegating the petitioners to a labour forum would not be an equally efficacious remedy and would result in denial of immediate and effective relief. On merits, the Court held that the impugned termination order was stigmatic in nature, as it was founded entirely on the allegation that the petitioners had participated in a strike. The Court placed significant reliance on the settlement dated 8 September 2015, approved by the Vice-Chancellor on 9 September 2015, which categorically provided that no adverse action would be taken against employees for participation in the strike. Once the competent authority had approved the settlement, the respondents were estopped from initiating punitive action based on the very conduct that had been condoned. The Court held that termination on this basis was manifestly arbitrary and contrary to the binding settlement. Importantly, the Court made a broader pronouncement that participation in a strike, by itself, cannot automatically justify termination of service, particularly in the absence of any finding that the strike was illegal or that the employee had committed any independent act of misconduct. If the respondents intended to treat the alleged absence during the strike as misconduct or abandonment of service, they could not have presumed the same unilaterally; rather, they were bound to follow due process by issuing a show-cause notice and holding a proper domestic enquiry. The Court observed that removal of an employee—whether a daily wager, casual, or permanent—for participation in a strike amounts to an allegation of misconduct and necessarily attracts the requirement of procedural safeguards. In the present case, it was an admitted position that no charge-sheet was issued, no opportunity of hearing was granted, and no enquiry was conducted, rendering the termination procedurally infirm. The Court further held that even if the termination were treated as termination simpliciter, its legality would still have to be tested under the Industrial Disputes Act, and such termination amounted to retrenchment under Section 2(oo), having been effected without compliance with Section 25-F, and was therefore illegal and void ab initio. The Court also found that the selective discontinuation of the petitioners violated the principle of “last come, first go” and failed the test of reasonableness and non-arbitrariness under Article 14, while unequal treatment vis-à-vis similarly placed employees infringed Article 16. Accordingly, the impugned order was set aside, and the petitioners were directed to be treated as continuing in service from the date of termination for all purposes, including continuity and seniority.