Shyam Babu Sinha S/O Late Shri K.C. ... vs Cement Corporation Of India, (A ...
2006 Latest Caselaw 1321 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This writ petition has been filed by the petitioner under Article 226 and 21 of the Constitution of India with the following prayer:

In view of the above mentioned facts and circumstances, it is most humbly prayed that the Hon'ble Court may graciously be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or direction to the respondent/ management to take the petitioner/workman back on duty with continuity of service, full back wages and other consequential reliefs since the date of his termination i.e. 06.03.1976.

2. Briefly the facts relevant for purpose of deciding this writ petition are that the petitioner was an employee of Dalmia Dadri Cement Ltd.(hereinafter called 'the company'). The services of the petitioner were terminated after disciplinary proceedings on the charges of misconduct on 6.3.1976. The company made an application under Section 33(2)(b) of Industrial Disputes Act(hereinafter called 'the Act') before Industrial Tribunal for permission to dismiss the petitioner. This application of the company was dismissed by Industrial Tribunal vide order dated 30.1.1980.

3. The company preferred a writ petition against the order dated 30.1.1980 of Tribunal challenging the validity of the order and the workman was not reinstated. The writ petition of Dalmiya Dadri Cement Limited was dismissed on 25.3.2003. However, during pendency of the writ petition filed against order of Tribunal a number of developments had taken place which are given in succeeding paras.

4. The company was undergoing problems in its functioning. A number of winding up petitions were filed against the company. Punjab and Haryana High Court had made an order of winding up of the company and initiated proceedings for liquidation of the company. The company issued a notice dated 18.3.1980 to all its employees which reads as under:

  Ref. No. DD/579                                                      Dated:18.3.1980
 

To 
All the Employees of 
M/s Dalmia Dadri Cement Ltd.,  
Factory Charkhi Dadri, 
Quarries Cement Factory Charkhi Dadri, 
Delhi Office:  
10, Daryaganj New Delhi 
 

It has been decided by the Board of Directors in its meeting held on 15.3.1980 to close down the factory w.e.f. 19.3.1980 due to acute financial crisis. The efforts made by the Company to run its business proved abortive and it become impossible to run the business. 
 

In view of this position of the matter all the employees of the Company working in the factory at Charkhi Dadri, quarries and the Delhi office at 10, Daryaganj, New Delhi, are, therefore, informed that in view of the facts that the factory, quarries and the Delhi Office are being closed down w.e.f. 19.3.1980 and the services of all the employees, excepting the one whose names along with the designation and departments appear in the list attached and marked as Annexure 'A" are no longer required and hence stand terminated with immediate effect i.e. w.e.f. the midnight of 18.3.1980. The accounts of all the employees will be settled in due course of time. However, they are advised to obtain a clearance chit from Shri Hari Shankar Jain, Stores in charge after depositing the material belonging to the Company.

For and on behalf of M/s Dalmia Dadri Cement Ltd.

Charkhi Dadri, Dist. Bhaiwani(Hr.)

(O.P. GUPTA) LABOUR OFFICER

5. Annexure 'A' as mentioned in the above notice contained names of 95 employees whose services were retained. Most of them were sweepers, peons, Chowkidars and a few were clerks, one was law officer and some working in accounts department and management department. The name of the petitioner did not appear in Annexure 'A'. The company closed its operation in March, 1980. It seems that despite the fact that the name of the petitioner did not appear in 95 retained employees, the petitioner did not approach the company for clearance of his dues as his termination from service was not permitted by the Court. In any case, this letter shows that all employees except 95 employees were terminated due to closure of the factory.

6. Government of India promulgated an Ordinance on 23.6.1981. By this Ordinance, the Central Government acquired Dalmia Dadri Cement Factory and took upon the management of cement factory to itself to secure proper management and to sub serve interest of public by ensuring continuity in manufacturing and production of cement which was considered essential for the needs of the country. The reasons given for acquisition and transfer was that winding up order had been made by Punjab & Haryana High Court against the company and the liquidation of the company was pending. In this Ordinance, the appointed day was defined as the date of commencement of Ordinance i.e. 23.6.1981. The management of the acquired undertaking was entrusted to Cement Corporation of India(herein after called 'Cement Corporation').

7. In September, 1992, the petitioner filed a LCA under Section 33(C)(2) of the Act against the Cement Corporation claiming wages for the period 23.6.1981, i.e the date of ordinance to 31.8.1982 before Labour Court at Tis Hazari. LCA was opposed by Cement Corporation on the ground of jurisdiction and that there was no employee and employer relationship between the petitioner and Cement Corporation. Labour Court held that the appropriate government in respect of Cement Corporation would be the Central Government since the entire assets of the company had been acquired by the Central Government and that application under Section 33(C)(2) was not maintainable before the Labour Court appointed by State Government of Delhi and it would be maintainable before Central Government Industrial Tribunal and the LCA was dismissed on 31.5.1999.

8. The petitioner/workman, had also raised an industrial dispute against Cement Corporation claiming reinstatement with back wages and continuity of service. The industrial dispute was referred by the Government on 24.11.1996 to the Labour Court. Cement Corporation, on receipt of notice from the Labour Court, challenged the reference made by State Government on the ground that Government of NCT had no power to make a reference of industrial dispute of the petitioner workman and it is the Central Government which can make such a reference. However, this petition of Cement Corporation was dismissed by this Court vide order dated 2.3.2005 holding that the State Government had powers to refer the dispute, being the appropriate government.

9. The petitioner filed the present petition in 2003, after the judgment of Supreme Court in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. with the prayer reproduced in para 1 above.

10. In the counter filed by Cement Corporation, it is stated that the writ petition was not maintainable since the industrial dispute to the same effect was pending before the Labour Court and the subject matter of the industrial dispute was same as that of the writ petition. As alternative remedy has been resorted to by the workman, the same should pursued by the petitioner. The reference of industrial dispute made by the appropriate government was to the following effect, which covers the relief prayed in the writ petition:

Whether refusal to take Shyam Baboo Sinha on duty by the Management is illegal and/or unjustified and if so, what relief is he entitled and what directions are necessary in this respect.

11. The respondent's case is that there was no employer and employee relationship between the petitioner and the respondent. The petitioner, at any stage, had not become employee of Cement Corporation. The company had been closed down in March, 1980 and vide notice dated 18.3.1980, the services of all employees except those mentioned in Annexure 'A' came to an end due to closure. The name of the petitioner did not figure in the list of employees given in annexure 'A'. Even if, it is presumed that the petitioner's service continued with Dalmia Dadri Cement Limited because of rejection of application under Section 33(C)(2), the services of the petitioner came to an end on 18.3.1980 due to closure of the factory's office Dalmia Dadri Cement Ltd. The petitioner, therefore, could not claim anything under the Ordinance. The petitioner has no right to claim issuance of any direction to CCI as claimed in the petition. The Judgment of Jaipur Zila Sahakari Bhoomi is not applicable in this case.

12. It is also stated that after dismissal of the writ petition of the Cement Corporation, challenging the right of State Government to make reference, this Court vide order dated 16.12.2005 gave directions to the Presiding Officer, Labour Court to dispose of the reference not later than 31.12.2006.

13. I have heard counsel for the parties. It is submitted by counsel for the petitioner that the petitioner is waiting for justice since 1980 when the application under Section 33(2)(b) of ID Act of the company was dismissed by Tribunal. After the dismissal of the application, the petitioner would be deemed to be in employment of Dalmia Cement Ltd and since this company was taken over and merged with CCI, all its employees by implication became employees of CCI and that by an implication, the petitioner, who was an employee of the company, also became employee of CCI and CCI was supposed to take him on duty after the management of the company was taken over by it. The original company DDCL does not exist and the petitioner cannot be remediless.

14. On the other hand, it is argued by the counsel for the respondent that the writ petition was not maintainable in view of the judgment of this Court in All India General Mazdoor Trade Union(Regd.) v. T.C.I.L and Ors. wherein this Court held that if an industrial dispute has already been raised and the matter is pending adjudication before Industrial Tribunal, then the writ for the same relief would not lie. It is also argued that the petitioner could, under no circumstances, be considered as an employee of C.C.I. The petitioner's services were terminated in 1976. The company, after termination of service filed an application for approval of dismissal with the Tribunal which was rejected in January, 1980. Even if it is considered that the petitioner's termination became nonest and the petitioner continued to be an employee of DDCL, the services of the petitioner came to an end with closure of DDCL and only 95 employees, whose names were given in Annexure 'A' remained the employees of the company at the time when the company was acquired by the Government of India. Respondent's counsel also drew attention to provisions of Section 5(c)(b) of the Ordinance to argue that, under no circumstances, the petitioner's claim could be made against Corporation. Section 5(2)(b) of the Ordinance reads as under:

(b) no award, decree or order of any court, tribunal or other authority in relation to the undertakings of the Company, passed after the appointed day, in respect of any matter, claim or dispute which arose before that day, shall be enforceable against the Central Government, or, where the undertakings of the Company are directed under Section 6 to vest in the Cement Corporation, against that Corporation;

15. It is submitted that CCI acquired right, title and interest in the company only after its acquisition by Central Government and became owner of the undertaking after Central Government became the owner of the property. It was not a case of merger or acquisition of company by way of purchasing majority of shares of the company. In fact, it was acquisition of a closed company whose operations had closed due to financial sickness. If the company had been acquired by purchase of majority of shares, the contention of the petitioner would have been valid but the company had been closed down and was under liquidation in March, 1980 and the Government acquired assets of company only to see that the production of cement is continued, the contentions of counsel for the petitioner were not tenable.

16. In my opinion, since a reference of the industrial dispute to the same effect/ prayer as claimed in this petition is already pending before Labour Court and the Labour Court has already been given directions that the reference should be disposed of by December, 2006, this writ petition is not maintainable. In All India General Mazdoor Trade Union (Regd.) v. T.C.I.L and Ors. , this Court observed:

The aforesaid judgment have no application to the facts and circumstances of the present case. It is a case where the petitioner-union has already raised industrial dispute and the matter is referred to the Industrial Tribunal for adjudication which provides for complete machinery for adjudication of such disputes. It is not permissible for the petitioner to choose this Forum after having invoked adjudicatory machinery provided under the Industrial Disputes Act. When more than one fora are available to a litigant it may be in his discretion to choose one of such Forum out of the fora available. This ''doctrine of election' further mandates that once a litigant has chosen one Forum, he cannot thereafter look to the other Forum provided for the same purpose. Therefore, in view of the fact that petitioner has already gone to Industrial Tribunal and the matter is under adjudication the present writ petition is not maintainable. The rights of the petitioner is not extinguished and the petitioner will be at liberty to raise all these points before the Industrial Tribunal and Industrial Tribunal would deal with these points before answering the reference in its award and before determining whether petitioner workmen on whose behalf the petitioner has raised dispute are entitled to any relief or not. (para 4)

Once this petition is held to be not maintainable as the respondent have invoked the machinery provided under the Industrial Disputes Act, the relief prayed for by the petitioner cannot be granted. It is needless to mention that machinery provided under the Industrial Disputes Act is a complete machinery. There are catena of judgments of Supreme Court as well as of this Court to the effect that when such alternate remedy is available the appropriate course for the workmen is to approach the said machinery rather than filing the writ petition. It would suffice to refer to the recent judgment of Supreme Court in the case of Scooter India v. Vijai E.V. Eldred . It is also well established that once a litigant chooses his Forum he chooses the same with all its limitations. The petitioner cannot be permitted to invoke the machinery provided under the Industrial Disputes Act for part of the relief and come to this Court by way of Article 226 for another part of the relief. Moreover, the petitioners are not remedyless inasmuch as the Labour Court has got the power to pass interim award. Not only this, the petitioners are protected in view of the provisions of Section 33 of the Industrial Disputes Act which provides that conditions of service etc., of the workmen are to remain unchanged under some circumstances, till pendency of proceedings, inter alia, before Labour/Industrial Tribunal. (para 5).

17. I consider that it would not be appropriate to express opinion on other issue. I, therefore, dismiss this writ petition. No order as to cost.