Lady Shri Ram College For Women vs Govt. Of Nct Of Delhi And Others
2011 Latest Caselaw 1442 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 11.03.2011

                              WP(C) 1831/1994



LADY SHRI RAM COLLEGE FOR WOMEN                       ..... Petitioner



                                      -versus-

GOVT. OF NCT OF DELHI & ORS.                        ..... Respondents

Advocates who appeared in this case:

For the Petitioner        : Mr Ayush Kumar & Mr Vaibhav Kalra, Advocates
For the Respondents       : None


CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1.   Whether the Reporters of local papers may
     be allowed to see the judgment ?                       No
2.   To be referred to Reporters or not ?                   No
3.   Whether the judgment should be reported                Yes
      in the Digest ?

RAJIV SHAKDHER, J (ORAL)

1. In the writ petition the following substantive prayers have been made:

a) setting aside the order dated 19.02.1994 passed by respondent no. 3 and quash the reference No. F.24(1464)/84/Lab/1041 dated 16.1.1985 passed by respondent no. 1 and 2;

b) prohibit respondent no. 3 from proceeding with the said reference dated 16.1.1985;

c) hold that the reference is not competent and there is no industrial dispute in the eyes of law when the matter has already been decided by this Hon'ble court in a writ petition no. 1975 of 1981 and the said judgment clearly operates as res-judicata;

2. As is evident on a perusal of the prayers, the petitioner is aggrieved by order

dated 19.02.1994 passed by the Labour Court (i.e. respondent no.3), as also an earlier

order dated 16.01.1985 passed by respondent no. 1 and 2 referring the disputes for

adjudication by respondent no. 3. The background in which the present writ petition

came to be filed in this court would thus have to be noticed.

3. Respondent no.4 at the relevant point in time was an employee of the

petitioner. He was appointed to the post of Semi-professional Assistant on

01.08.1967. On account of a complaint dated 07.09.1979 made by another employee

of the petitioner, which primarily veered around the alleged indecent behaviour of

respondent no. 4; a chargesheet came to be filed against him on 22/25.01.1980.

Pursuant to which, a departmental inquiry was conducted against respondent no. 4.

The inquiry officer came to the conclusion that the charges against respondent no. 4

stood proved. Consequently, on 10.04.1981, a show cause notice was issued to

respondent no. 4 seeking his response to the proposed punishment, which in the

instant case, was dismissal.

4. The Governing Body of the petitioner after considering the reply of

respondent no. 4 to the show cause notice, unanimously came to the conclusion that

the proposed punishment was in order. Accordingly, respondent no. 4 was dismissed

from the service w.e.f. 30.05.1981.

5. Respondent no. 4, however, availed of a appellate remedy by preferring an

appeal before the Appeal Committee, set up by the petitioner. The Appeal

Committee after following the due process, confirmed the decision taken by the

Governing Body.

5.1 Being aggrieved by the aforesaid action, respondent no. 4 filed a writ petition

being: CWP no. 1975/1981, under Article 226 of the Constitution of India.

5.2 This court after hearing both parties vide order dated 15.10.1982 dismissed

the aforementioned writ petition filed by the respondent no. 4. It is pertinent to note

that while dismissing the writ petition a Division Bench of this Court observed as

follows:

".....The appeal Committee noticed that opportunity had been given in the petitioner to produce any evidence also other than himself to rebut the evidence produced before the Enquiry Officer, but none was forthcoming and, therefore, it saw no reason to disagree with the decision of the Enquiry Office and we cannot say that this approach suffers from any legal infirmity. As to whether this extreme penalty should have been imposed or not though the Appeal Committee noticed that the punishment of dismissal is a severe one but considering the use of indecent language against the women employees it thought it particularly undesirable in the context that an institution is run exclusively for women, it saw no justification to take a different view from the one taken by the Enquiry Officer. We can also find no fault with the procedure adopted. The petitioner was told not only in substance but factually what the charge against him was, which was that he was using the indecent language against women colleagues. The insistence of Mr Sibbal that witnesses and the charge should have detailed in explicit language the foul mouthed words is to put a premium on the behaviour of the petitioner and to ignore the delicacy of the situation by equiring (sic read as enquiring) the lady colleague to repeat the exact words which they would obviously be embarrassed to do. Putting lady colleague to a situation where they are driven to charge him with using indecent language. If believed by the concerned authorities, as it has been, was sufficient in law to proceed against the petitioner. The quantum of punishment cannot obviously be examined by us in these writ proceedings. If the Appeal Committee after taken into account the facts and the circumstances of the case has found no reason to give a lesser punishment this court cannot obviously take a different view because we are not sitting as a Court of Appeal. We are only concerned with seeing whether the petitioner had a proper and fair opportunity to defend himself which we find he had. The decision of the authorities cannot be said to be biased or prejudiced in any manner. We, therefore, can find no reason to interfere....."

6. It appears that the respondent no. 4 did not let the matter rest there and hence

decided to approach the Industrial Court under the Industrial Disputes Act, 1947 (in

short „ID Act‟) for adjudication of his disputes with the petitioner. Since conciliation

proceedings failed, respondent nos. 1 and 2 vide order dated 16.01.1985 referred the

dispute to the Labour Court, i.e., respondent no. 3. The terms of reference, as

recorded in the order dated 16.01.1985, are as follows:

"Whether the dismissal of services of Shri Rahmat Ali Warsi is illegal and/or unjustified and if so to what relief is he entitled and what directions are necessary in this respect?"

7. On notice being issued to the petitioner they entered appearance before the

Labour Court. Before the Labour court the petitioner filed its written statement. In

the written statement, amongst other aspects which related to the merits of the case,

the petitioner took a preliminary objection with regard to the maintainability of the

proceedings in view of the fact that the respondent no. 4 had already impugned the

decision of the petitioner directing his dismissal, before this court, in a writ

proceeding. The petitioner further averred that the judgment of this court dated

15.10.1982 passed in WP(C) No. 1975/1981 was carried in appeal by respondent no.

4 to the Supreme Court, which was also dismissed. In these circumstances, the

petitioner submitted that the proceedings before the Labur Court ought not to

continue as they were barred on the principle of res-judicata. The written statement

of the petitioner was followed by an interlocutory application with almost, an

identical plea. This application came to be filed in November, 1993. In the

application the following substantive prayers were made:

       "a)        decide the aforesaid issue in the first instance;
       b)         hold that the applicant is barred from raising this dispute in view

of the fact that he has already exhausted his remedy in the aforesaid writ proceedings; and...."

7.1 The Labour Court however rejected the aforementioned application by the

impugned order i.e., order dated 19.02.1994.

7.2 Being aggrieved, the petitioner filed the captioned writ petition against the

impugned order whereby, its application had been rejected by the Labour Court.

8. Mr. Ayush Kumar, who appears for the petitioner has, apart from taking me

through the record of the case and the orders passed by the Labour Court, as well as

of this Court, contended that the proceedings before the Labour Court ought to be

quashed in view of the fact that this court has already rendered a decision on the

merits of the case including the dismissal of respondent no. 4. The learned counsel

also submitted that the respondent no. 4 had, as noticed above, carried the matter in

appeal to the Supreme Court by way of a special leave petition, which was

dismissed. It is, therefore, contended that in view of the dismissal of respondent

no.4 having been sustained, respondent nos. 1 and 2 could not have, in the first

instance, referred the disputes for adjudication by a Labour Court and the Labour

Court, likewise, could not have adjudicated upon the merits of the case in the

aforementioned circumstances. In support of his submissions learned counsel relied

upon the judgment of the Supreme Court in the case of Pondicherry Khadi &

Village Industries Board vs P. Kulothangan & Anr. (2004) 1 SCC 68.

9. As would be evident from the appearance recorded by me today, there has

been no representation on behalf of the respondents, including, in particular, on

behalf of respondent no. 4. Therefore, I have not had the benefit of oral submissions

being made on behalf of the respondents. Nevertheless having heard the learned

counsel for the petitioner and perused the record, I am of the view that his contention

has to be sustained.

9.1 A perusal of the counter affidavit filed by respondent no. 4 would show that

he has opposed the writ petition on broadly two grounds. First, that this court, while

passing order dated 15.10.1982, had opined "....The quantum of punishment

cannot obviously be examined by us in these writ petitions....". Therefore, by

implication the issue had not attained finality. In other words, principle of res-

judicata was not applicable. The second ground of challenge, which was really an

off shoot of the first, is to the effect that the impugned order of the Labour Court had

to be sustained, in view of the fact that the principle of law is that a preliminary issue

had to be decided with other issues pertaining to the merits of the case and not in a

piece-meal fashion.

10. In so far as the first objection of the respondent no. 4 is concerned, according

to me the same is misconceived. The respondent no. 4 has misread the order of the

Division Bench dated 15.10.1982 passed in WP(C) No. 1975/1981. The relevant

portion of the order has already been extracted by me hereinabove. I may only once

again extract that part of the order on which stress has been laid by respondent no. 4

in the counter affidavit. The Division Bench of this court while observing "quantum

of punishment cannot obviously be examined by us in these writ proceedings"

went on to state "if the Appeal Committee after taken (sic read as taking) into

account the facts and the circumstances of the case has found no reason to give a

lesser punishment this court cannot obviously take a different view because we are

not sitting as a Court of Appeal. We are only concerned with seeing whether the

petitioner had a proper and fair opportunity to defend himself which we find he

had. The decision of the authorities cannot be said to be biased or prejudiced in

any manner. We, therefore, can find no reason to interfere."

10.1 The aforesaid would clearly demonstrate that the court sustained the

punishment of dismissal and did not leave the quantum of punishment to be decided

by any other forum or court, including the Labour Court.

11. As regards the other objection that the impugned judgment had to be

sustained in view of the reasoning adopted by the Labour Court that a preliminary

issue had to be necessarily decided along with the issues, amongst others, on merits

would ordinarily be the correct approach in matters other than those, where inter

partes decision is rendered on the same subject matter by a court of competent

jurisdiction. It cannot be the stand of respondent no.4 that the High Court was not a

court of competent jurisdiction as he had himself approached the court invoking its

extra-ordinary jurisdiction. Nor can it be disputed that the subject matter was not the

same, that is, "dismissal" of respondent no.4. Therefore, this case, would fall in the

exception that preliminary issues need not be decided with other issues where

preliminary issues pertain to either jurisdiction or bar in law, to the action being

proceeded with. In this case a superior court having sustained the order of dismissal,

which received the imprimatur of the Supreme Court, there was an obvious bar to the

proceedings continuing being barred by the principle of res-judicata.

11.1 There is another aspect of the matter, which is, that if the decision of the

Labour Court were to be challenged by an aggrieved party it would ordinarily come

to this court, where an aggrieved party would seek interference under Article 226

read with Article 227 of the Constitution of India. Such an eventuality could lead to

a piquant situation. Therefore, keeping in mind the hierarchy of courts; and given

the fact that the issue received the attention of this court, the Labour Court ought not

to have entertained the action or in the very least decided the maintainability of the

action as a preliminary issue de-hors the merits of the case.

11.2 I therefore, also find it curious that respondent nos. 1 and 2 referred the

dispute for adjudication to the labour court, in the first instance. The petitioner on

the other hand did precious little to get the error corrected.

11.3 Be that as it may, the petitioner has approached this court upon the

proceedings having commenced before the Labour Court. The petitioner chose a

more conservative path in calling upon the Labour Court to decide the issue as a

preliminary issue. In my view, the Labour Court ought to have done so, in the given

circumstances.

11.4 Since nearly 17 years have passed, I am of the view that no purpose would be

served in quashing the impugned order and remanding the matter to the Labour

Court for deciding the aforementioned issue as a preliminary issue.

12. As indicated hereinabove, the reference was not maintainable. There being

no dispute that this court had passed a judgment on merits, a reference could not

have been made. As necessary adjunct, the Labour Court could not have entertained

the dispute on merits or given any relief contrary to the judgment of this court dated

15.10.1982 passed in WP(C) No. 1975/1981. In these circumstances, the writ

petition is allowed. Both, orders dated 16.01.1985 and 19.02.1994 are quashed. The

parties shall, however, bear their own costs.

MARCH 11, 2011                                              RAJIV SHAKDHER, J.
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