Senior Manager vs Ramu Mochi
2022 Latest Caselaw 4243 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(L) No.2679 of 2017

    Uttar Bihar Gramin Bank, (eight Regional Rural Banks
    amalgamated to one Regional Rural Banks including
    Mithila Kshetriya Gramin Bank), incorporated under
    Regional Rural Banks Act, 1976 having its Head office at
    Kalambagh Chowk, Muzaffarpur - 842001 through its
    Senior Manager, Priya Ranjan Sinha, son of Sri M. P.
    sinha, resident of bela road, Muzaffarpur, Bihar - 842001
                                          ......      Petitioner
                                Versus

    Ramu Mochi, son of Nathuni Mochi, resident of village -
    Bedhant, P.O & P.S - Manigachi, Police Station -
    Manigachi, District - Darbhanga   ..... Respondent
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner : Ms. Amrita Sinha, Advocate For the Respondent : Mr. Saibal Kr. Laik, Advocate

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               th
11/Dated: 18        October, 2022

1. Heard learned counsel for the petitioner and learned counsel for the respondent.

2. The present writ petition has been filed against the Award dated 30.03.1999, passed by Shri B. B. Chatterjee, the Presiding Officer, Central Government Industrial Tribunal (No.2), Dhanbad, in which the reference being Reference No.137 of 1995 has been answered in favour of the workman.

3. It appears that the workman/ respondent was engaged as a casual worker and he had worked from 04.09.1981 to 05.01.1983 and thereafter he has been removed from the services. He has been kept on approaching the authority finding no favour and ultimately industrial dispute has been raised in the year 1994. The conciliation between the parties has been failed and accordingly the matter has been referred for adjudication by the Tribunal. The terms of reference reads as under :-

"Whether the action of the Management of Mithila Kshetriya Gramin Bank in terminating the services of Shri Ramu Mochi w.e.f. 05.01.1983 is just and legal ? If not, to what relief is the workman entitled ?"

Both the parties have filed their pleadings and led the evidences. The workman has submitted that he has been simply asked not to come to the Bank and no termination letter has been provided to him.

On the other hand, the Bank has not denied the fact that the workman has worked in the Bank, but has taken the plea

that he has stopped coming to the Bank. It is a case of leaving the job and it is not a case of terminating him from job. Further, there is long unexplained delay in raising the industrial dispute. The Bank has also taken the plea that the workman has not been contracted for 240 days in a calendar year.

4. It further appears that the Tribunal, after considering the evidences and pleadings, has answered the reference in favour of the workman and the relief has been granted, which reads as under :

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2. ------------------

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30. The schedule of reference is thus decided in favour of the workman by holding that the action of the management of Mithila Keshtriya Gramin bank in terminating the services of Sri Ramu Mochi w.e.f. 5.1.83 was neither legal nor justified. The management of the bank is directed to reinstate Sri Ramu Mochi within 60 days from the date of publication of the Award in the official Gazette without paying any back wages. The Award is rendered accordingly.

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5. It further appears that the Award dated 30.03.1999 has been challenged by filing a writ petition being C.W.J.C. No.5485 of 1999 (P) before the Hon'ble Patna High Court and after reorganization, the said case has been transferred to the Jharkhand High Court. The said case has been dismissed for default vide order dated 19.02.2009. The order dated 19.02.2009 reads as under :-

"None appears in spite of second call and accordingly this writ petition is dismissed for non- prosecution."

6. It also appears that thereafter restoration petition being C.M.P No.127 of 2012 for restoration of C.W.J.C. No.5485 of 1999 (P) to its original file, has been filed which has again been dismissed vide order dated 31.10.2014. The order dated 31.10.2014 reads as under :-

"1) Neither the case is mentioned earlier nor any one appears for the petitioner when the case is called out.

2) Counsel for the respondents submitted that on account of pendency of the C.M.P., the award passed by the learned Industrial Tribunal at Dhanbad in Reference Case No.137 of 1995 is not yet implemented.

3) Hence, this application is dismissed for default.

4) Interim relief, if any granted by this Court, stands vacated."

7. It further appears that thereafter for restoration of the said C.M.P. No.127 of 2012, another restoration application being C.M.P No.117 of 2015 has been filed, which again has been dismissed vide order dated 06.01.2017. The order dated

06.01.2017 reads as under :-

"I.A. No.192 of 2016

1. Present interlocutory application has been preferred under Section 5 of the Limitation Act, 1963, for condonation of delay of 115 days in preferring this Civil Miscellaneous Petition.

2. Having heard counsel for the both sides and looking to the reasons stated in the interlocutory application, especially in paragraph Nos.4 to 9, it appears that there are reasonable grounds for condonation of delay.

3. In view of these facts, we hereby, condone the delay in preferring this Civil Miscellaneous Petition. Accordingly, I.A. No.192 of 2016 is allowed and disposed of.

C.M.P. No.117 of 2015

4. This Civil Misc. Petition has been preferred for restoration of another Civil Misc. Petition, viz. C.M.P. No.127 of 2012, which was dismissed for default vide order dated 31st October, 2014 due to non- appearance of the Advocate for the applicant. C.M.P 127 of 2012 was preferred for restoration of C.W.J.C. No.5485 of 1999(P) which was dismissed for default on 19th February, 2009 due to non-prosecution.

5. In the present Civil Misc. Petition, viz. C.M.P No.117 of 2015 no cogent and convincing reason has been given as to why nobody appeared on 31 st October, 2014 in C.M.P. No.127 of 2012 and therefore, there is no ground to recall the order dated 31st October, 2014 vide which C.M.P. No.127 of 2012 was dismissed for default and hence, this Civil Miscellaneous Petition, viz. C.M.P. No.117 of 2015 stands dismissed."

It appears that thereafter the present writ petition has been filed for challenging the impugned Award dated 30.03.1999 on 10.05.2017.

8. Learned counsel for the petitioner has relied upon the various judgments of the Hon'ble Supreme Court taking plea that the second writ petition is maintainable on the ground that the principle of res judicata or second petition cannot be a criteria for rejecting the second writ petition.

9. On the other hand, learned counsel for the respondent/ workman has supported the Award and it has been submitted that the workman has wrongly been terminated for which the industrial dispute has been raised. The reason for delay is that the workman was getting assurance from the management. The Tribunal has considered the materials brought on record and accordingly the Award has been passed in his favour.

Learned counsel has also referred to the order dated 24.03.2000, passed in C.W.J.C No.5485 of 1999, wherein observation has been given that if the workman succeeds then he will be entitled for the consequential benefits adjusting the amount already paid under Section 17B of the I.D. Act.

10. Heard learned counsel for the parties. It is trite that second writ petition is maintainable if the cause of action survives or the matter has not been decided on merits, but in

the present case there is a delay and laches on the part of the petitioner/ management. Even this Court vide its order dated 06.01.2017, passed in C.M.P No.117 of 2015, has observed that no cogent and convincing reason has been provided by the Bank and as such restoration has been denied. It is a case where the reference has been answered in favour of the workman in the year 1999 after evaluating the materials brought on record.

11. Considering the fact that there is unexplained delay and there is laches also in pursuing the proceedings before this Court, I am not inclined to entertain the present writ petition. Accordingly, the same is, hereby, dismissed.

12. In view of the final order passed in the present writ petition, I.A. No.4097 of 2017 stands disposed of.

(Rajesh Kumar, J.) Chandan/-