Delhi High Court
Capt. R. Khosla vs Jetlite India Ltd. on 23 February, 2012
Author: A.K.Sikri
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23 February, 2012
+ LPA 3/2009
CAPT. R. KHOSLA ..... Appellant
Through: Ms. Deepa Arya & Mr. Jagat Singh,
Advs.
Versus
JETLITE INDIA LTD. ..... Respondent
Through: Mr. C.U. Singh, Sr. Adv. with Mr.
Rajiv Shankar Dwivedi & Mr.
Dhawal Malhotra, Advs.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
A.K. SIKRI, ACTING CHIEF JUSTICE (ORAL)
1. This Intra-Court appeal is preferred against the judgment dated
09.09.2008 passed by the learned Single Judge in W.P.(C) No.9135/2006.
By means of that judgment, the learned Single Judge has allowed the
aforesaid writ petition of the respondent herein and set aside the award
dated 13.02.2006 passed by the Central Government Industrial Tribunal
(CGIT)-cum-Labour Court in I.D. No.24/2000.
2. The appellant herein was appointed as Pilot in Sahara Airlines with
effect from 01.11.1994. His services were terminated on 16.07.1998 after
holding departmental inquiry on the charges leveled against him vide
charge-sheets dated 05.06.1998 and 20.06.1998. Against the termination
order, the appellant approached the proper government under the Industrial
Disputes Act, 1947 and raised a dispute. This dispute was referred to
CGIT with the following terms of reference:
"Whether the action of the Chief Controller, Sahara Airlines
Ltd. 7th Floor, Amba Deep Building, 14, Kasturba Gandhi
Marg, Connaught Place, New Delhi-110 001 in terminating
the services of Capt. R. Khosla, Ex. Pilot, Resident of A-160,
Jalwayu Vihar, Sector : 21, Noida (UP) - 201 301 w.e.f.
16.07.1998 is justified, valid and legal? If not to what relief
and benefit he is entitled."
3. As stated above, the termination was a result of departmental inquiry
against the appellant, holding charges leveled against him as proved.
Therefore, in a case like this, the first and foremost question is whether the
departmental inquiry conducted against the appellant was fair and in
accordance with the principles of natural justice. We may also record at
this stage that right from the beginning the respondent management had
taken up a plea that the appellant was not a workman within the meaning
of Section 2(s) of the Industrial Disputes Act, 1947 and therefore the
proceedings under I.D. Act could be taken. This objection was persisted
by the respondent management before the CGIT as well, in its written
statement to the statement of claim filed by the appellant. In the affidavit
filed by way of evidence, again averments to this effect were made.
Therefore in addition to the validity of the departmental inquiry, CGIT was
also required to determine as to whether the appellant was a "workman" or
not.
4. It appears that the Tribunal did not segregate the issue of the validity
of the inquiry. In fact after the evidence, arguments were heard and vide
award dated 13.02.2006 all the aspects of dispute were determined and
decided. The Tribunal held that the inquiry was vitiated as it was not in
consonance with the principles of natural justice. The contention of the
respondent management that appellant is not a workman was also taken
note of at page 20 of the award. However, this contention was repealed by
the Tribunal in the following manner:
"This point cannot be raised as this point has been
adjudicated upon after hearing both the parties in the interim
proceedings and it has the effect of res judicata or at least
constructive res judicata."
5. Since the issue of inquiry was decided against the respondent
management, the Tribunal proceeded to answer the reference by holding
that termination of the appellant‟s services was neither justified nor valid
nor legal. Accordingly, reinstatement with full back wages with effect
from 16.07.1998 was ordered and it was also directed that in case of
default, the appellant will also be entitled to 10% interest per annum along
with entire back wages. It is this award which was challenged by the
respondent management by filing the aforesaid writ petition inter alia on
the ground that the question whether the appellant is a workman or not
was not decided by the Tribunal on any earlier occasion in the proceeding
and therefore the finding that this issue was barred by principles of res
judicata or constructive res judicata was clearly erroneous.
6. The learned Single Judge accepted the contention aforesaid of the
respondent management and while setting aside the impugned award, the
matter has been remanded back to the Tribunal for fresh decision in
accordance with law "after affording opportunity of hearing to both the
parties." Six months time was given to the Tribunal to decide the case.
Challenging this order, present appeal is preferred. Learned counsel for
the appellant submitted that Pilot is held to be a workman within the
meaning of Section 2(s) of the I.D. Act undoubtedly a Single Judge of this
Court has in the case of Mathur Aviation Vs. Lt. Governor, Delhi 1978
(36) FLR 7 held that Pilot is a workman within the meaning of Section 2(s)
of the I.D. Act. This argument however ignores that the issue of workman
has to be decided and determined on the basis of evidence produced (see
Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh (2005) 3 SCC 232).
We had summoned the records of the CGIT. In the affidavit by way of
evidence filed by the respondent management, it is specifically averred that
having regard to the duties of the appellant, he is not a workman under
Section 2(s) of the I.D. Act. Once this question is raised, CGIT was under
obligation to decide the same. Though the CGIT has decided on this issue
but it is on the ground that issue is barred by res judicata as at an earlier
stage of the proceedings this issue has been decided. The learned Single
Judge categorically recorded that the appellant could not point out as to
when this issue was decided. In order to verify this averment in the order
of the Tribunal, we summoned the record of the Tribunal. After going
through the record, we find that this issue had not been decided at any
stage prior to passing of the award. Thus the decision of the Tribunal
holding that the issue is barred by res judicata / constructive res judicata is
clearly erroneous and learned Single Judge was right in remitting the
matter back to the Tribunal to decide this issue afresh on the basis of
evidence.
7. We may clarify that neither the learned Single Judge nor we have
commented upon the merits of this issue. It may be that ultimately the
appellant is able to prove that he is a workman and therefore CGIT had the
necessary and requisite jurisdiction to entertain the industrial dispute.
However, since this issue has not been decided and is to be decided by the
CGIT in the first instance, we do not find any infirmity in the order of the
learned Single Judge in remanding the matter back to the Tribunal on this
aspect.
8. The learned Single Judge has further rightly directed the Tribunal to
decide whether opportunity has been afforded or is to be afforded to the
management to prove misconduct before the Tribunal, if the departmental
inquiry held is again on remand to be held to be bad. This aspect will
have to determined by the Tribunal having regard to the pleadings, charges
and also the circumstances of the case.
9. Finding no merit in this appeal, the same is dismissed with no order
as to costs. Having regard to the time which has elapsed, we impress upon
the Tribunal to decide the case and pass the fresh award preferably within
three months. Parties are directed to appear before the learned Tribunal on
19th March, 2012. The record be returned back to the Tribunal forthwith.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
FEBRUARY 23, 2012
„gsr‟
