Rajasthan High Court
Shri Rajesh Koolwal vs Shankar Lal Sharma S/O Late Shri ... on 5 March, 2022
Bench: Manindra Mohan Shrivastava, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Special Appeal (Writ) No. 182/2019
In
S. B. Civil Writ Petition No. 3213/2015
1. Shri Rajesh Koolwal, Upadhyaksh (Work)
2. Shri Rohit Jhalani,
3. Shri R.C. Saxena, Manager (HR),
(Through M/s. K E C International Ltd., Jhotwara
Industrial Area, Jaipur)
----Appellants/Non petitioners
Versus
1. Shankar Lal Sharma S/o Late Shri Jwalaram Ji Sharma,
resident of Gram Post Paimpur (Prempur) Via Jattari
Janpad, Aligarh (Uttar Pradesh).
Non Appellant/Petitioner
2. Shri R.K. Jain, Chairman, Labour Laws Advisors
Association through Hon'ble Labour Court No. 1, 6Th
Floor and Industrial Tribunal, 6Th Floor, Mini Secretariat,
Jaipur.
3. Shri Alok Fathehpuria, (Advocate), through M/s. KEC
International Ltd., Jhotwara, Jaipur- 302012.
4. Shri Dhanraj Sharma, Additional Labour Commissioner,
5. Shri Chandrabhan Singh Rathore, Joint Labour
Commissioner,
(4 and 5 through Labour Department, Sharma Bhawan,
Shanti Nagar, Jaipur through Govt. of Rajasthan).
----Performa respondents/Non Petitioners
For Appellants : Mr. R.N. Mathur, Senior Advocate
through Video Conferencing with Mr.
Rupin Kala, Advocate.
For Respondent No. : Mr. Shankar Lal Sharma Respondent
1 No.1-workman present in person.
HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
(Downloaded on 09/03/2022 at 09:22:52 PM)
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REPORTABLE
5/03/2022
By the Court:(Per Manindra Mohan Shrivastava,J.)
This intra court appeal is directed against order dated
30.10.2018 passed by the learned Singe Judge, by which
respondent's writ petition has been allowed, setting aside orders
dated 29.08.2012 and 14.09.2012 passed by the Industrial
Tribunal, Jaipur (hereinafter referred to as 'the Industrial Tribunal')
in the matter of challenge to termination order dated 08.04.1992
passed against respondent No. 1-workman by the appellant-
employer. Respondent-writ petitioner has been held entitled to
get his pay allowance treating him as permanent employee of the
appellants in terms of earlier award passed in his favour. He has
also been held entitled to receive retiral benefits as per the
provisions of law on attaining superannuation. Learned Single
Judge has also directed that arrears shall be computed and
released within stipulated period.
2. The factual matrix and the genesis of the dispute between
the parties giving rise to the present appeal has a checkered
history which comprises of two different disciplinary proceedings
drawn by the appellant-employer against respondent No. 1-
workman. Respondent No. 1-workman was engaged as unskilled
worker with the company of the appellant on 19.09.1977 until he
was discontinued with effect from 08.08.1981. An industrial
dispute was raised challenging the termination, which culminated
in an award of reinstatement in favour of respondent No. 1-
workman. The award was challenged by the appellant-company
before the High Court. The litigation between the appellant and
respondent No. 1 in respect of the dispute arising due to
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termination with effect from 08.08.1981 continued and various
proceedings were drawn by both the parties by filing appeal,
review petition, recall application etc. Finally an award dated
03.09.2003 was passed after remand by the Labour Court and the
termination order dated 08.08.1981 was held bad in law leading to
reinstatement with continuity of service. At the instance of
respondent No. 1, however, aspect of compliance of the award
continued and finally vide order dated 14.02.2006, Division Bench
of the High Court in D.B. Civil Writ Petition No. 1996/2003 held
that the award of the Labour Court dated 03.09.2003 stands fully
complied with.
3. While the matter relating to legality and validity of
termination with effect from 08.08.1981 was pending
consideration at various levels, respondent No. 1 having been
reinstated under the orders passed in his favour, another charge
sheet came to be issued on 02.06.1990 followed by second charge
sheet dated 08.06.1990 alleging misconduct on the part of
respondent No. 1-workman in respect of the services rendered by
him after reinstatement pursuant to award. The disciplinary
enquiry ended in issuance of termination order dated 08.04.1992.
On application filed under Section 33(2)(b) of the Industrial
Disputes Act, 1947 (hereinafter referred to as 'the ID Act') seeking
approval of the termination order dated 08.04.1992, various
proceedings were drawn before this Court as well as before the
Hon'ble Supreme Court by the parties to this appeal and finally
vide order dated 30.03.2005, the Hon'ble Supreme Court
remanded the case to the Division Bench of the High Court to
decide approval application filed by the appellants under Section
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33(2)(b) of the ID Act with regard to subsequent termination of
respondent No. 1-workman with effect from 08.04.1992.
After the remand of the case for hearing on approval
application under Section 33(2)(b) of the ID Act, Division Bench of
this Court passed a detailed order on 09.03.2006 in D.B. Civil
Special Appeal (Writ) No. 1006/2002 again remanding the matter
back to the Industrial Tribunal for deciding afresh application
under Section 33(2)(b) of the ID Act seeking approval of
subsequent dismissal of respondent No. 1-workman with effect
from 08.04.1992. The Industrial Tribunal, on remand on approval
application, heard and framed preliminary issue as to whether the
enquiry conducted by the management was fair and proper. Vide
order dated 14.06.2006, the Industrial Tribunal held the enquiry
conducted by the management to be fair and proper. Thereafter,
the Industrial Tribunal passed order on merits on 03.02.2007
granting approval to the termination of respondent No. 1-
workman with effect from 08.04.1992. This order was again
challenged by respondent No. 1-workman before the High Court
by filing S.B. Civil Writ Petition No. 1012/2007. Vide order dated
13.06.2012, learned Single Judge of this Court once again
remanded the matter back to the Industrial Tribunal to decide the
case afresh. After another round of litigation, when the matter
again landed up before the Industrial Tribunal towards
consideration of approval application under Section 33(2)(b) of the
ID Act afresh, the Industrial Tribunal first passed an order on
29.08.2012 holding that Shri Alok Fatehpuria is entitled to
represent the company before the Tribunal under Section 36, sub-
section (2) of the ID Act. Thereafter, vide order dated
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14.09.2012, learned Industrial Tribunal by a detailed order
granted approval to the subsequent dismissal of respondent No. 1-
workman with effect from 08.04.1992. These two orders dated
29.08.2012 and 14.09.2012 were challenged by respondent No. 1-
workman in S.B. Civil Writ Petition No. 3213/2015, wherein
learned Single Judge held in favour of respondent No. 1-workman,
allowing his writ petition and passing order dated 30.10.2018,
which is impugned in this appeal.
4. Before we proceed to examine correctness of the order
passed by the learned Single Judge, it needs to be clarified that
this appeal is confined to the issue of legality and validity of
subsequent dismissal order dated 08.04.1992 and not legality and
validity of earlier termination order dated 08.08.1981 as in that
case, award of reinstatement has attained finality.
5. Assailing correctness and validity of the order passed by the
learned Single Judge, learned Senior Counsel appearing on behalf
of the appellants has made elaborate submissions both with
regard to the maintainability of the writ petition as also on the
merits of the case in the matter of legality and validity of the order
passed by the learned Single Judge with regard to orders dated
29.08.2012 and 14.09.2012 passed by the Industrial Tribunal
granting approval under Section 33(2)(b) of the ID Act to
dismissal order dated 08.04.1992.
As far as argument with regard to very maintainability of the
writ petition filed by respondent No. 1-workman is concerned,
contention of learned Senior Counsel is that after orders dated
29.08.2012 and 14.09.2012 were passed by the Industrial
Tribunal granting approval under Section 33(2)(b) of the ID Act,
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respondent No. 1-writ petitioner challenged these two orders in
S.B. Civil Writ Petition No. 5584/2013, which petition was
dismissed and the dismissal order was affirmed in appeal by the
Division Bench vide judgment dated 06.12.2013 passed in D.B.
Civil Special Appeal (Writ) No. 517/2013. Review against that
order was also dismissed and finally the matter was taken to the
Hon'ble Supreme Court by respondent No. 1 and the Hon'ble
Supreme Court also dismissed the writ petition as also review filed
against its order. It is, therefore, urged that challenge to orders
dated 29.08.2012 and 14.09.2012 having attained finality, Writ
Petition No. 3213/2015 in which impugned order has been passed,
was barred by principle of res judicata. Learned Senior Counsel,
elaborating his submission and placing reliance upon the
judgments of the Hon'ble Supreme Court in State of Uttar
Pradesh Vs. Nawab Hussain, AIR 1977 SC 1680 and
Forward Construction Co. & Others Vs. Prabhat Mandal
(Regd.), Andheri & Others, AIR 1986 SC 391, contended that
once the legality and validity of orders dated 29.08.2012 and
14.09.2012 was assailed in earlier round of litigation, even though
there was no detailed discussion on the said legality and validity,
the relief sought but not granted, would be deemed to be denied.
It is argued that the principle of constructive res judicata is
applicable to writ proceedings and, therefore, plea, which could
well have been raised but not raised, cannot be subsequently
raised by filing subsequent writ petition. In the earlier round of
litigation while challenging the legality and validity of orders dated
29.08.2012 and 14.09.2012, respondent No. 1-writ petitioner kept
in forefront a prayer for holding CBI enquiry and made wild,
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baseless allegations not only against the officers of the appellant-
company, but also the Judicial Officers and Judges, who dealt with
his case on judicial side. As the writ petition came to be
dismissed, it was not open for respondent No. 1 to again reopen
the issue regarding validity of orders dated 29.08.2012 and
14.09.2012.
Further submission of learned Senior Counsel is that even
after the first round of litigation before this Court in the matter of
challenge to orders dated 29.08.2012 and 14.09.2012 which
attained finality, after dismissal of the review petition filed by
respondent No. 1-workman by the Hon'ble Supreme Court vide
order dated 24.03.2015, subsequent writ petition was not
maintainable.
6. In the alternative, learned Senior Counsel, arguing on the
aspect of merits of the case regarding correctness and validity of
the order passed by the learned Single Judge in the matter of
approval under Section 33(2)(b) of the ID Act by the Industrial
Tribunal vide orders dated 28.08.2012 and 14.09.2012, firstly
highlighted that the Industrial Tribunal, after remand of the case
by this Court, framed a preliminary issue with regard to fairness of
the enquiry and an order was passed on 14.06.2006 holding that
the enquiry conducted by the management was fair and proper.
Thereafter, the case was heard on merits and on 03.02.2007, an
order was passed granting approval to termination order dated
08.04.1992. Though order dated 03.02.2007 passed by the
Industrial Tribunal was challenged before this Court, the earlier
order dated 14.06.2006 deciding preliminary issue was never
challenged and, therefore, attained finality. Learned Single Judge
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fell in error of law in not taking into consideration the effect of
non-challenge to order dated 14.06.2006 passed by the Industrial
Tribunal, whereby the Industrial Tribunal held that the enquiry was
fair and proper.
7. Further submission of learned Senior Counsel is that as far
as engagement of Shri Alok Fatehpuria is concerned, it is
contended that the finding recorded by learned Single Judge in
Para 36 of the order suffers from legal error inasmuch as Shri Alok
Fatehpuria, apart from being an advocate, was also Executive
Board Member of the Employers Association of Rajasthan, Jaipur
and was representing the company as an office bearer of
Employers Association of Rajasthan, Jaipur of which Association,
the appellant-company was also a member. Therefore, it is
argued that Shri Alok Fatehpuria was entitled to represent the
company before the Industrial Tribunal. It is further brought to
the notice of this Court that in S.B. Civil Writ Petition No.
3423/2003, it has been held vide order dated 23.11.2004 that
Shri Alok Fatehpuria, being office bearer of the Employers
Association of Rajasthan, is entitled to represent the employer
before the Industrial Tribunal. This order of the Court having not
been challenged, set that issue at rest and, therefore, finding of
the learned Single Judge in this regard is not sustainable in law.
He would further submit that in any case, such an issue has been
set at rest in catena of decisions of the Hon'ble Supreme Court as
also various judgments of this Court.
8. Further submission of learned Senior Counsel is that even
though the issue with regard to compliance of award passed in
favour of respondent No. 1-workman as against termination order
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dated 08.08.1981 has been set at rest vide orders dated
14.02.2006 and 18.04.2006 passed by Division Bench of this
Court, that issue is again sought to be raised by respondent No. 1-
workman in the present writ petition. He would submit that after
the termination in the first round with effect from 08.08.1981 was
held to be bad in law and award of reinstatement was passed on
01.08.1985, respondent was reinstated in service on 19.02.1986
and back wages were also paid. Therefore, nothing remains to be
complied with in respect of the award passed by the Labour Court
in respect of the termination of respondent No. 1-workman with
effect from 08.08.1981.
9. The last submission of learned Senior Counsel is that learned
Single Judge has illegally recorded a finding in para 36 of the
impugned order holding that subsequent dismissal vide order
dated 08.04.1992 on certain allegations of misconduct was result
of inherent malice and bias developed on account of various
proceedings drawn by respondent No. 1-workman alleging
harassment and the said finding is swayed more by long pendency
of dispute between the parties, rather than there being any
material placed on record. It has been argued that once the
subsequent dismissal on charges of misconduct on 08.04.1992
has been held to be fair, proper and legal and based on reliable
evidence of misconduct committed by respondent No. 1-workman,
inference of mala fide could not be drawn. Mere fact that during
pendency of the dispute with regard to legality and validity of first
order of termination dated 08.08.1981, after reinstatement under
an award, again departmental enquiry was initiated on allegation
of misconduct, without anything more, could not by itself be
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treated as an act of harassment, victimisation or malice against
respondent No. 1-workman.
10. On the other hand, respondent No. 1-workman appearing in
person, who is defending the order passed by the learned Single
Judge, has made elaborate submissions stating that he has been
harassed and victimised by the management. He was illegally
terminated on 08.08.1981 and respondent No. 1-workman availed
remedy under law by taking the matter to the Industrial Tribunal
where an award of reinstatement in his favour was passed.
However, the appellant-employer did not respect the order of the
Industrial Tribunal. Time and again, they kept on challenging the
orders and matter was remanded to the Industrial Tribunal and
after several rounds of litigation, the workman's stand was
vindicated when in the third round, an award was passed in his
favour by the Industrial Tribunal on 03.09.2003 holding
termination dated 08.08.1981 as illegal. During this period,
respondent No. 1-workman was harassed in many ways and only
as a measure of victimisation, he was again subjected to
departmental enquiry by issuing charge sheets one after the other
in the year 1990. No proper enquiry was held. The documents,
which were sought by respondent No. 1-workman, were never
supplied to him. He was pitted against experts. Proper opportunity
to defend was not given to him. There was no legal evidence
collected to justify dismissal, yet a mala fide order of dismissal
was again passed on 08.04.1992, only with a view to somehow
keep respondent No. 1-workman out of the employment by hook
or by crook. This attitude was duly appreciated by the learned
Single Judge holding that repeated and prolonged frivolous
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proceedings by the employer against the workman have given
serious mental set back to the workman. The very act of the
appellants in initiating departmental proceedings in the second
round while the dispute with regard to his termination order was
pending in the Court, by itself speaks volume of high handedness
and mala fide action. The malice on the part of the appellants is
writ large on the face of it as even the benefits flowing from award
dated 03.09.2003 in the matter of first termination order dated
08.08.1981 have not been fully extended to respondent No. 1-
workman. In support of his submissions, respondent No. 1 has
placed reliance on the judgments of the Hon'ble Supreme Court in
the cases of The Bhavnagar Municipality Vs. Alibhai
Karimbhai & Others, (1977) 2 SCC 350; Pepsu Road
Transport Corporation Vs. Lachhman Dass Gupta & Another,
2002 (4) SLR (SC) Page 143; South Bengal State Transport
Corporation Vs. Swapan Kumar Mitra & Others, 2006 (109)
FLR 1; Indian Telephone Industries Limited & Another Vs.
Prabhakar H. Manjuare & Another, (2003) 1 SCC 320;
Jaipur Zila Sahakari Bhoomi Bank Ltd. Vikas Vs. Shri Ram
Gopal Sharma & Others, JT 2002 (1) SC 182; Board of
Trustees of the Port of Bombay Vs. Dilipkumar
Raghavendranath Nadkarni & Others, (1983) 1 SCC 124;
judgment of Calcutta High Court in the case of B. Yellappa Vs.
Steel Authority of India Ltd. & Ors. 2004 (1) SLR Page 228.
11. As has been referred to hereinabove, the controversy raised
in the petition and decided by impugned order relates only to the
second termination order passed on 08.04.1992 in the
departmental enquiry initiated against respondent No. 1-workman
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under two charge sheets dated 02.06.1990 and 08.06.1990.
Indisputably, after respondent No. 1 was reinstated in service
under the earlier award of the Labour Court holding termination
dated 08.08.1981 as illegal, the appellant-employer issued two
charge sheets on 02.06.1990 and 08.06.1990 against respondent
No. 1-workman. The enquiry officer, after completing the enquiry,
submitted his enquiry report dated 10.01.1991 to the employer
holding that the charges were found proved. The management
accepting the enquiry report and taking into consideration the
gravity of misconduct, dismissed the workman from service with
effect from 08.04.1992 as a measure of punishment on the
charges of misconduct.
The appellant-employer also moved an application before the
Industrial Tribunal under Section 33(2)(b) of the ID Act seeking
approval of the dismissal order dated 08.04.1992 as another
dispute under ITR 42/1989 was pending before the Industrial
Tribunal. It is not necessary for this Court to deal with various
orders, which were passed from time to time in proceedings
relating to application under Section 33(2)(b) of the ID Act, but
suffice to mention that finally vide order dated 30.03.2005, the
Hon'ble Supreme Court remanded the case for fresh adjudication
to the Division Bench of this Court for deciding on the legality and
validity of orders passed by the Industrial Tribunal in the matter of
application under Section 33(2)(b) of the ID Act.
After the remand of the case by the Hon'ble Supreme Court,
Division Bench of this Court in D.B. Civil Special Appeal (Writ) No.
1006/2002 heard the case and passed judgment on 09.03.2006
by which it again remanded the matter back to the Industrial
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Tribunal for fresh adjudication of the application under Section
33(2)(b) of the Act in the matter of approval of subsequent
dismissal with effect from 08.04.1992 in two departmental
enquiries initiated by issuance of charge sheets dated 02.06.1990
and 08.06.1990.
12. After remand, the Industrial Tribunal heard the preliminary
issue as to whether the enquiry was fair and proper and decided
the same on 14.06.2006 holding that the enquiry conducted by
the management was fair and proper. Thereafter, the Industrial
Tribunal heard the case on merits and vide order dated
03.02.2007 granted approval to the termination of respondent No.
1-workman with effect from 08.04.1992. That order was again
challenged by respondent No. 1-workman in S.B. Civil Writ Petition
No. 1012/2007 and the learned Single Judge of this Court vide
order dated 13.06.2012 once again remanded the case back to
the Industrial Tribunal to decide the same afresh. It is pertinent
to mention here that while laying challenge to order dated
03.02.2007, respondent No. 1-workman did not assail legality and
validity of earlier order dated 14.06.2006 passed by the Industrial
Tribunal on the preliminary issue whereby the Industrial Tribunal
held the enquiry conducted by the management to be fair and
proper.
After remand of the case, the Industrial Tribunal again
proceeded to hear the case and at that stage, respondent No. 1-
workman objected to representation of the management by Shri
Alok Fatehpuria on the ground that he could not represent the
management in view of bar under Section 36 of the ID Act. Vide
order dated 29.08.2012, the Industrial Tribunal rejected the
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objection holding that bar under Section 36 of the ID Act would
not come in the way of Shri Alok Fatehpuria representing the
company before the Industrial Tribunal. Thereafter, application
under Section 33(2)(b) of the ID Act was again considered by the
Tribunal and vide order dated 14.09.2012, the Industrial Tribunal
granted approval of termination with effect from 08.04.1992.
Respondent No. 1-workman, thereafter, filed S.B. Civil Writ
Petition No. 5584/2013. In that petition, the grievance of the
petitioner as ventilated in the petition, clearly arose against orders
dated 29.08.2012 and 14.09.2012 passed by the Industrial
Tribunal. In that petition, there were serious allegations made
against the Presiding Officer of the Tribunal and while praying for
relief of directing registration of FIR and case to be investigated by
CBI on the allegation of there being a conspiracy, specific prayer
was made for quashing orders dated 29.08.2012 and 14.09.2012
with heavy cost. The relevant part of the prayer made in S.B. Civil
Writ Petition No. 5584/2013 reads as below:
"ssbl lkft'k o iM;a= ds }kjk feyhHkxr ls fn;s x;s vkns'k fnukad
29-08-2012 o 14-09-2012 gSoh ls gSoh dksLV yxkdj [kkfjt fd;k
tkos o ,QvkbZvkj ntZ djokdj izdj.k dks lh-ch-vkbZ- dks lqiqnZ
fd;k tkosA"
13. It, however, appears that during the course of hearing
though said prayer for quashing orders dated 29.08.2012 and
14.09.2012 was made in the petition, respondent No. 1 sought to
keep in forefront his prayer for registration of offence and handing
over the case to CBI without making substantive arguments to
assail correctness and validity of orders dated 29.08.2012 and
14.09.2012. But then the fact remains that when S.B. Civil Writ
Petition No. 5584/2013 was filed, the immediate cause of action
for the petitioner/respondent No. 1 was two orders dated
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29.08.2012 and 14.09.2012 passed by the Industrial Tribunal and
further that a specific prayer for quashing those orders was also
made, though coupled with prayer for direction to register the FIR
and handing over the case to CBI on wild allegations. Writ
petition, however, came to be dismissed vide order dated
15.04.2013. Against that order, D.B. Civil Special Appeal (Writ)
No. 517/2013 was preferred. In that appeal also, the relief, which
was sought clearly shows that respondent No. 1-workman had
challenged the legality and validity of orders dated 29.08.2012
and 14.09.2012 and also reiterated the relief for quashing these
orders as below:
"vihykFkhZ ds fdlh Hkh izkFkZuk i=] dkuwuh n`"Vkar o fojks/k ij inkZ
Mkydj fnukad 29-08-2012 o 14-09-2012 dks vkns'k fn;s x;s gS gSoh ls
gSoh dksLV yxkdj [kkfjt fd;s tkosaA izdj.k dzekad vkbZ-Vh-vkj-
[email protected] o ,e-vkbZ-Vh- [email protected] esa fjdkMZ rd xk;c gS bl dkj.k Hkh
izdj.k dks lh-ch-vkbZ- ds lqiqnZ fd;k tkosaA"
14. Division Bench, however, vide judgment dated 06.12.2013
dismissed the intra court appeal. A review petition was also filed
against that judgment. In that review petition, again prayer was
reiterated that orders dated 29.08.2012 and 14.09.2012 be set
aside on the allegation that the orders are outcome of conspiracy
hatched between the management and the Presiding Officer of the
Industrial Tribunal. The review petition was also dismissed vide
order dated 21.08.2014.
15. It is pertinent to mention that respondent No. 1 filed yet
another writ petition bearing No. 42819/2012 before the Hon'ble
Supreme Court seeking implementation of the award dated
03.09.2003 passed in his favour by the Labour Court in the matter
of earlier termination dated 08.08.1981 and there also, while
seeking relief of implementation of the award dated 03.09.2003
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passed by the Labour Court as also Notification dated 17.01.2006,
a specific prayer was made for quashing and setting aside orders
dated 29.08.2012 and 14.09.2012 passed by the Industrial
Tribunal in the matter of grant of approval under Section 33(2)(b)
of the ID Act. That writ petition was dismissed by the Hon'ble
Supreme Court on 28.01.2015. An application for recall of that
order was also dismissed on 24.03.2015.
16. The attempt made by respondent No. 1-workman to
challenge orders dated 29.08.2012 and 14.09.2012 and specific
relief sought for quashing those orders was not allowed and,
therefore, it has to be held that said relief was deemed to be
rejected. It was thereafter that again Writ Petition No. 3213/2015
(out of which this appeal has arisen) was filed by respondent No.
1-workman again reiterating his earlier grievance and prayer for
quashing orders dated 29.08.2012 and 14.09.2012. This time, it
was coupled with some other relief that withheld salary of thirty
workmen, increased amount of gratuity be paid with compound
interest. A prayer was also made for quashing order dated
25.08.2007 passed by the Industrial Tribunal. Prayer was also
made for implementation of award dated 03.09.2003, Notification
dated 17.01.2006 and for implementation of order dated
18.04.2006 passed in D.B. Civil Special Appeal (Writ) No.
831/2002 along with prayer for payment of gratuity of Rs.
62,04,884/- along with compound interest as also payment of
pension with effect from 01.07.2002. It would, thus, be seen that
respondent No. 1-workman after suffering adverse orders from
the Industrial Tribunal, after the last remand, vide orders dated
29.08.2012 and 14.09.2012, kept on filing petitions, some times
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praying for registration of FIR and holding CBI enquiry, sometimes
adding relief of implementation of award dated 03.09.2003 and
Notification dated 17.01.2006 and then in the present writ petition
adding some new relief and again praying for quashing of orders
dated 29.08.2012 and 14.09.2012.
17. Learned Single Judge on the aspect of maintainability has
opined that in the earlier round of litigation, this Court nowhere
examined the legality and validity of orders dated 29.08.2012 and
14.09.2012 passed by the Industrial Tribunal in the matter of
granting approval of termination order dated 08.04.1992, but only
confined to other relief sought in the writ petition. According to
learned Single Judge, as the writ petition filed earlier was
considered only with regard to transferring the case to CBI for
investigation, the aspect of grant of approval vide order dated
14.09.2012 could be raised. For this purpose, learned Single
Judge has relied upon observations made by the Division Bench in
para 10 of its judgment dated 06.12.2013 that the writ petition
pertained to relief sought for investigation of the matter by CBI
and therefore, the judgments referred to and relied upon with
reference to provisions of Section 33(2)(b) of the ID Act will have
no relevance. The relevant observations made by the Division
Bench have been referred to by the leaned Single Judge in para 29
of its order.
18. It appears that though while filing S.B. Civil Writ Petition No.
5584/2013 challenge was made to orders dated 29.08.2012 and
14.09.2012, during course of arguments, the relief with regard to
holding of investigation by handing over the case to CBI alone was
pressed into service and it was in that context that the Division
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Bench vide judgment dated 06.12.2013, referred to hereinabove,
did not allow respondent No. 1 to make submission with regard to
validity of orders in the matter of grant of approval under Section
33(2)(b) of the ID Act.
That would not mean that respondent No. 1 was entitled to
again raise that issue by a separate petition, i.e., the present case
(Writ Petition No. 3213/2015). Respondent No. 1 had made
specific prayer for quashing of two orders dated 29.08.2012 and
14.09.2012, but it was not pressed into service at the time of
arguments and the orders were invited only on the prayer seeking
direction to hand over the investigation to CBI by registration of
FIR. The question, therefore, which arises for consideration is
whether respondent No. 1 could have again raised the same issue
and made the same prayer in a subsequent petition having not
pressed the relief sought for in S.B. Civil Writ Petition No.
5584/2013.
19. As early as in the case of State of Uttar Pradesh Vs.
Nawab Hussain (supra), the principle of constructive res
judicata was held applicable in the writ proceedings by the Hon'ble
Supreme Court. On facts, the petitioner in that case, who was
working as Sub Inspector, was dismissed from service by an order
of Deputy Inspector General of Police. On dismissal of appeal, a
writ petition was filed in the High Court for quashing disciplinary
proceedings on the ground that he was not afforded a reasonable
opportunity to meet the allegations against him and that the
action taken against him was mala fide. Writ petition was
dismissed. Thereafter, the petitioner therein filed a civil suit in the
Court of Civil Judge, where he challenged the order of dismissal on
(19 of 34) [SAW-182/2019]
the ground inter alia that he had been appointed by the Inspector
General of Police and Deputy Inspector General of Police was not
competent to dismiss the petitioner by virtue of Article 311, sub-
article (1) of the Constitution of India. As plea of res judicata was
raised by the State as defence in the suit, the matter travelled up
to the Hon'ble Supreme Court. The Hon'ble Supreme Court
referred to principle of estoppel per res judicata and held as
below:
"3. The principle of estoppel per res judicata is a
rule of evidence. As has been stated in Marginson v.
Blackburn Borough Council, (1939) 2 KB 426 at p.
437 it may be said to be "the broader rule of
evidence which prohibits the reassertion of a cause
of action". This doctrine is based on two theories:
(i) The finality and conclusiveness of judicial
decisions for the final termination of disputes in the
general interest of community as a matter of public
policy and (ii) the interest of the individual that he
should be protected from multiplication of litigation.
It therefore serves not only a public but also a
private purpose by obstructing the reopening of
matters which have once been adjudicated upon. It
is thus not permissible to obtain a second judgment
for the same civil relief on the same cause of
action, for otherwise the spirit of contentiousness
may give rise to conflicting judgments of equal
authority, lead to multiplicity of actions and bring
the administration of justice into disrepute. It is the
cause of action which gives rise to an action, and
that is why it is necessary for the courts to
recognise that a cause of action which results in a
judgment must lose its identity and vitality and
merge in the judgment when pronounced. It cannot
therefore survive the judgment, or give rise to
another cause of action on the same facts. This is
what is known as the general principle of res
judicata."
The Hon'ble Supreme Court thereafter explained the principle
of constructive res judicata and held as below:
"4. But it may be that the same set of facts may
give rise to two or more causes of action. If in such
a case a person is allowed to choose and sue upon
one cause of action at one time and to reserve the
other for subsequent litigation, that would
aggravate the burden of litigation. Courts have
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therefore treated such a course of action as an
abuse of its process and Somervell L. J., has
answered it as follows in Greenhalgh v. Mallard
(1947) 2 All ER 255 at page 257:-
"I think that on the authorities to which I will
refer it would be accurate to say that res judicata
for this purpose is not confined to the issues which
the court is actually asked to decide, but that it
covers issues or facts which are so clearly part of
the subject-matter of the litigation and so clearly
could have been raised that it would be an abuse of
the process of the court to allow a new proceeding
to be started in respect of them."
This is therefore another and an equally necessary
and efficacious aspect of the same principle, for it
helps in raising the bar of res judicata by suitably
construing the general principle of subduing a
cantankerous litigant. That is why this other rule
has sometimes been referred to as constructive res
judicata which in reality, is an aspect or
amplification of the general principle."
The Hon'ble Supreme Court, taking into consideration the
development of law on the aspect of application of principle of
constructive res judicata, while explaining the principle that came
to be settled in several decisions, declared the law as below:
"7. xxxxxxxxxxxxxxxxxx. The question which
specifically arose for consideration was whether the
principle of constructive res judicata was applicable
to writ petitions of that kind. While observing that
the rule of constructive res judicata was "in a sense
a somewhat technical or artificial rule prescribed by
the Code of Civil Procedure", this Court declared the
law in the following terms,-
"This rule postulates that if a plea could have
been taken by a party in a proceeding between him
and his opponent, he would not be permitted to
take that plea against the same party in a
subsequent proceeding which is based on the same
cause of action; but basically, even this view is
founded on the same considerations of public policy,
because if the doctrine of constructive res judicata
is not applied to writ proceedings, it would be open
to the party to take one proceeding after another
and urge new grounds every time; and that plainly
is inconsistent with considerations of public policy to
which we have just referred."
In the last but concluding paragraph, the Hon'ble Supreme
Court clearly held that where plea was available but not raised in
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the earlier round even though it was within the knowledge of the
writ petitioner, res judicata would bar subsequent petition. It was
observed as below:
"8. It is not in controversy before us that the
respondent did not raise the plea, in the writ
petition which had been filed in the High Court, that
by virtue of Cl (1) of Art. 311 of the Constitution he
could not be dismissed by the Deputy Inspector
General of Police as he had been appointed by the
Inspector General of Police. It is also not in
controversy that that was an important plea which
was within the knowledge of the respondent and
could well have been taken in the writ petition, but
he contented himself by raising the other pleas that
he was not afforded a reasonable opportunity to
meet the case against him in the departmental
inquiry and that the action taken against him was
mala fide. It was therefore not permissible for him
to challenge his dismissal, in the subsequent suit,
on the other ground that he had been dismissed by
an authority subordinate to that by which he was
appointed. That was clearly barred by the principle
of constructive res judicata and the High Court
erred in taking a contrary view."
20. In a subsequent decision in the case of Forward
Construction Co. & Others (supra), the issue with regard to
applicability of principle of res judicata again arose. In the High
Court, the plea of res judicata was negated for two reasons; firstly
that in the earlier writ petition, the validity of permission granted
under the rules was not in issue and secondly, earlier writ petition
was not bona fide one and that was put up by some disgruntled
petitioner. Dealing with two issues, their Lordships in the Hon'ble
Supreme Court held as below:
"20. So far as the first reason is concerned, the
High Court in our opinion was not right in holding
that the earlier judgment would not operate as res
judicata as one of the grounds taken in the present
petition was conspicuous by its absence in the
earlier petition. Explanation IV to S.11, C.P.C.
provides that any matter which might and ought to
have been made ground of defence or attack in such
former suit shall be deemed to have been a matter
directly and substantially in issue in such suit. An
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adjudication is conclusive and final not only as to
the actual matter determined but as to every other
matter which the parties might and ought to have
litigated and have had it decided as incidental to or
essentially connected with the subject matter of the
litigation and every matter coming within the
legitimate purview of the original action both in
respect of the matters of claim or defence. The
principle underlying Explanation IV is that where the
parties have had an opportunity of controverting a
matter that should be taken to be the same thing as
if the matter had been actually controverted and
decided. It is true that where a matter has been
constructively in issue it cannot be said to have
been actually heard and decided. It could only be
deemed to have been heard and decided. The first
reason, therefore, has absolutely no force."
Thus, on principles, what has been held earlier in the case of
State of Uttar Pradesh Vs. Nawab Hussain (supra) was
reiterated by the Hon'ble Supreme Court.
21. Applying the aforesaid principles to the present case, it is
clear that respondent No. 1-workman, after having suffered orders
dated 29.08.2012 and 14.09.2012 by the Industrial Tribunal,
which were the immediate cause for him to file Writ Petition No.
5584/2013, had not only ventilated his grievance against these
two orders, but also clearly sought a relief for quashing of those
orders, though coupled with other relief of registration of FIR and
investigation by CBI. Having not pressed relief against orders
dated 29.08.2012 and 14.09.2012 and choosing to press his writ
petition only on the aspect of registration of FIR and investigation
by CBI, in our considered opinion, clearly barred respondent No.
1-workman from raising challenge to orders dated 29.08.2012 and
14.09.2012 in subsequent proceedings. The view of the learned
Single Judge that since the legality of those two orders was not
examined in the earlier round of litigation, therefore, it was open
for respondent No. 1 to file another writ petition, is not acceptable
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in law in view of the principles, which have been propounded by
the Hon'ble Supreme Court, as discussed at length hereinabove.
Rather, the principle that relief, if not granted, shall be deemed to
be rejected, will be applicable in the present case. Though it was
open for respondent No. 1 to seek indulgence of the Court in the
earlier round of litigation raising a grievance that challenge to
orders dated 29.08.2012 and 14.09.2012 was not examined,
respondent No. 1 chose not to raise any such grievance in higher
courts even after having suffered order in S. B. Civil Writ Petition
No. 5584/2013. He having reiterated this prayer not only in the
appeal against the order of the learned Single Judge, but also in
the petition filed before the Hon'ble Supreme Court that orders
dated 29.08.2012 and 14.09.2012 be quashed, the law did not
permit respondent No. 1 to again reopen the issue with regard to
legality and validity of orders dated 29.08.2012 and 14.09.2012,
as the proceedings in the matter of challenge to those orders
attained finality. The findings of learned Single Judge in this
regard, therefore, cannot be upheld in law.
22. Even though, we are of the view that the writ petition
challenging orders dated 29.08.2012 and 14.09.2012 was barred
by principle of res judicata with constructive res judicata, we have
examined the merits of the case as well.
23. At the first place, it has to be noted that as far as
departmental enquiry, which culminated in order of dismissal
dated 08.04.1992 is concerned, after remand by the High Court,
when the Industrial Tribunal passed an order on 14.06.2006
holding that the enquiry was fair and proper, respondent No. 1-
workman did not challenge that order. It was only when the final
(24 of 34) [SAW-182/2019]
order was passed by the Industrial Tribunal on 03.02.2007, the
petition was filed before the Court, which led to another round of
remand.
24. Learned Single Judge vide impugned order has set aside the
order granting approval to the dismissal order dated 08.04.1992
mainly on the consideration that the Industrial Tribunal ought to
have disallowed Shri Alok Fatehpuria to represent the employer
once objection under Section 36 of the ID Act was made by one of
the parties and that the proceedings initiated against respondent
No. 1-workman were on account of inherent malice and bias
developed on account of earlier proceedings initiated by
respondent No. 1-workman against the management in the matter
of his earlier termination in the year 1981.
25. As far as representation of employer by Shri Alok Fatehpuria
before the Industrial Tribunal is concerned, learned Single Judge in
para 33 of the order has held that as Shri Alok Fatehpuria is an
advocate, even though he may be a member of the Association,
would not lose his status as a lawyer. It has further been
observed that the purpose of Section 36 of the ID Act is to
maintain a level playing field amongst the parties and the
Industrial Tribunal ought to have disallowed Shri Alok Fatehpuria
to represent the employer once an objection was received under
Section 36 of the ID Act by one of the parties.
The objection in this regard raised by respondent No. 1-writ
petitioner before the Industrial Tribunal was considered and
rejected vide order dated 29.08.2012. On facts, learned Industrial
Tribunal has recorded that in the present case, a certificate was
placed on record by the company/employer, which was issued by
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Employers Association of Rajasthan, according to which, M/s. KEC
International Limited Company is a member of Employers
Association of Rajasthan. Another certificate issued by Employers
Association of Rajasthan was also placed before the Industrial
Tribunal in which Shri Alok Fatehpuria has been certified to be a
member of the Executive Board of the Association and an office
bearer. These facts, which were relied upon by the Industrial
Tribunal, have not been disputed by respondent No. 1-writ
petitioner in the petition filed by him before the learned Single
Bench. Further, authorization letter issued in favour of Shri Alok
Fatehpuria by the Vice President of the employer-company has
also not been disputed. Therefore, on this admitted factual
premise, it needs to be examined whether there is a bar on
representation by Shri Alok Fatehpuria, who though happens to be
an advocate, but is otherwise an officer bearer and member of the
Executive Board of Employers Association of Rajasthan and M/s.
KEC International Limited Company, the employer is member of
Employers Association of Rajasthan. Further, Shri Alok Fatehpuria
had been appearing as representative and he did not file any
vakalatnama, so as to say that he was representing as an
advocate. In such a factual premise, in our considered opinion,
there was no bar under Section 36 of the ID Act for the employer-
company to seek representation of its case by Shri Alok Fatehpuria
before the Industrial Tribunal as his representative, though not as
an advocate. Learned Industrial Tribunal, in coming to this
conclusion that bar under Section 36 of the ID Act is not attracted,
has relied upon number of judgments. The appellant-company
has relied upon as many as 14 judgments in support of its
(26 of 34) [SAW-182/2019]
contention that the view taken by the Industrial Tribunal that in
the factual premise of the present case, bar would not be
attracted is correct. We need not consider it necessary to refer to
all the judgments, except judgment of the Hon'ble Supreme Court
in the case of Paradip Port Trust Vs. Their Workmen, 1976
Volume II L.L.J. (SC) Page 409. In that case, the Hon'ble
Supreme Court considered legality of rejection by the Tribunal of
the prayer for representation of the appellant therein before the
Tribunal through its advocate on the ground of objection under
Section 36, sub-section (4) of the ID Act raised by the Union and
also allowing the advocate and Vice President of the Union under
Section 36, sub-section (1) of the ID Act notwithstanding the
objection raised by the management. It was held as below:
"15. If, however, a legal practitioner is appointed as
an officer of a company or corporation and is in
their pay and under their control and is not a
practising advocate, the fact that he was earlier a
legal practitioner or has a legal degree will not stand
in the way of the company or the corporation being
represented by him. Similarly, if a legal practitioner
is an officer of an association of employers or of a
federation of such associations, there is nothing
in S. 36(4) to prevent him from appearing before
the Tribunal under the provisions of S. 36(2) of the
Act. Again, an office-bearer of a trade union or a
member of its executive, even though he is a legal
practitioner, will be entitled to represent the
workmen before the Tribunal under S. 36(1) in the
former capacity. The legal practitioner in the above
two cases will appear in the capacity of an officer of
the association in the case of an employer and in
the capacity of an office-bearer of the union in the
case of workmen and not in the capacity of a legal
practitioner. The fact that a person is a legal
practitioner will not affect the position if the
qualifications specified in S. 36(1) and S. 36(2) are
fulfilled by him.
16. It must be made clear that there is no scope for
enquiry by the Tribunal into the motive for
appointment of such legal practitioners as office-
bearers of the trade unions or as officers of the
employers' associations. When law provides for a
requisite qualification for exercising a right,
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fulfilment of the qualification in a given case will
entitle the party to be represented before the
Tribunal by such a person with that qualification.
How and under what circumstances these
qualifications have been obtained will not be
relevant matters for consideration by the Tribunal in
considering an application for representation under
S.36(1) and S. 36(2) of the Act. Once the
qualifications under S. 36(1) and S. 36(2) are
fulfilled prior to appearance before Tribunals, there
is no need under the law to pursue the matter in
order to find out whether the appointments are in
circumvention of S. 36(4) of the Act. Motive of the
appointment cannot be made an issue before the
Tribunal."
The legal position, therefore, is clear that if a legal
practitioner is an officer of an association of employers or of a
federation of such associations, Section 36, sub-section (4) of the
ID Act does not bar him in appearing before the Tribunal under the
provisions of Section 36, sub-section (2) of the ID Act. This legal
position will equally apply to the workman side also. The Hon'ble
Supreme Court made it clear that there is no scope for enquiry by
the Tribunal into the motive for appointment of such legal
practitioner as office bearer of the employers association.
The aforesaid decision has been relied upon and applied not
only by this Court in catena of decisions including order dated
24.02.1987 passed in S.B. Civil Writ Petition No. 191/1986, Jaipur
Golden Transport Company Vs. The Industrial Tribunal and Others
as also in various judgments delivered by this Court from time to
time.
This legal position was considered in great details by the
Industrial Tribunal in its order dated 29.08.2012, but none of them
has been considered by the learned Single Judge, nor the finding
in this regard has been traversed. Therefore, the finding of the
learned Single Judge, in this regard, cannot be sustained in law.
(28 of 34) [SAW-182/2019]
26. In para 35 of its order, the learned Single Judge has noted
that the Industrial Tribunal vide its order dated 14.09.2012
granted approval to application under Section 33(2)(b) of the ID
Act, holding the enquiry to be in accordance with principles of
natural justice and fairness. The objection of respondent No. 1-
workman that the representative of the employer was a legally
qualified person while respondent No. 1-writ petitioner was not
given facility of appointing an advocate has been noted and
further that his prayer for appointing an advocate was refused by
the enquiry officer. However, correctness of those objections,
which were considered by the Industrial Tribunal vide its order
dated 14.09.2012, has not been examined by the learned Single
Judge. In fact, the findings in this regard have not been
traversed. In this regard, it is to be noted that earlier the
Industrial Tribunal had framed a preliminary issue as to whether
enquiry was fair and proper and vide order dated 14.06.2006 it
held that the enquiry was fair and proper. That order was not
challenged. Subsequently, final order was passed by the
Industrial Tribunal on 03.02.2007 granting approval, that order
was challenged before this Court and this Court vide order dated
13.06.2012 passed in S.B. Civil Writ Petition No. 1012/2007 again
remanded the matter back to the Industrial Tribunal. In that
order also, earlier order passed on 14.06.2006 holding enquiry to
be fair and proper was not discussed, much less held to be bad in
law. In any case, after the matter was remanded back to the
Industrial Tribunal, again order dated 14.09.2012 was passed by
the Industrial Tribunal after detailed consideration. In para 20 of
its order, the Industrial Tribunal, after minute scrutiny of the order
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sheets in departmental enquiry proceedings, recorded a finding
that workman's case of enquiry officer denying prayer to engage
Shri Moolchand Saini as his representative is not reflected from
any of the order sheets. The other objection of the workman that
he had objected to engagement of Shri R.C. Saxena as
representative of the management has also been considered and it
has been held that it is for the management to decide its
representation and the workman cannot object to such choice.
Further contention of respondent No. 1-workman that the
management is represented by a legally trained officer but the
delinquent workman is denied appointment of a legal practitioner
to represent his case which would violate principles of natural
justice, has also been taken into consideration. It has been noted
that the management had finally engaged one Shri S.P. Sinha and
thereafter, Shri R.C. Saxena was appointed as its representative
but it is not the stand of the workman that either of them were
legal practitioner. However, it has been stated that Shri R.C.
Saxena is well versed in law. The Industrial Tribunal has
categorically recorded a finding that from the order sheets of the
enquiry proceedings and other records, it is nowhere reflected that
respondent No. 1-workman ever applied for appointment of a
lawyer as his representative. These categoric findings, which were
recorded by the Industrial Tribunal in its order dated 14.09.2012,
have not been traversed by the learned Single Judge. Only
contention of respondent No. 1-workman on this aspect has been
recorded and thereafter no finding on this aspect has been
recorded. Therefore, the aspect that the management was
allowed to engage a legal practitioner but the prayer made by
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respondent No. 1-workman to engage a legal practitioner as his
representative was rejected, is factually incorrect and not borne
out from the records itself.
27. Another objection noted by learned Single Judge in para 35
of the order that though the enquiry officer was an advocate and
therefore, it vitiated the enquiry, has also been specifically dealt
with by the learned Industrial Tribunal in para 21 of its order dated
14.09.2012 and relying upon decision of the Hon'ble Supreme
Court in the case of Biecco Lawrie Ltd. & Another Vs. State of
West Bengal and Another, 2009 LLR Page 1057 has held that
appointment of an advocate even though he may be advocate of
the company, does not vitiate the enquiry. In this regard another
judgment of the Hon'ble Supreme Court in the case of Saran
Motors Private Limited, New Delhi Vs. Vishwanath and
Another, 1964, Volume 9, FLR Page 7 has also been relied
upon. On consideration of these two judgments, judgment relied
upon by respondent No. 1-workman has been distinguished.
The legal position as has been examined by the learned
Industrial Tribunal and as laid down by the Hon'ble Supreme Court
in the case of Biecco Lawrie Ltd. & Another (supra) clearly
holds that in such a case, the enquiry would not be vitiated. This
categoric finding recorded by the Industrial Tribunal has also not
been traversed by the learned Single Judge.
28. Another objection that the copy of the standing orders of the
company was not supplied, has also been considered by the
Industrial Tribunal in Para 22 of the order and a categoric finding
of fact has been recorded after perusal of the order sheets of the
enquiry proceedings that copy of standing orders has already been
(31 of 34) [SAW-182/2019]
made available on the notice board and the workman was
apprised of the same. Further referring to the order sheets of the
enquiry proceedings, learned Industrial Tribunal has recorded that
Hindi translation of standing orders was produced during enquiry
and the contents of the same were also explained to the
workman.
29. Thus, all the objections, which were taken by respondent No.
1-workman to assail the propriety and fairness of the enquiry,
were duly examined by the Industrial Tribunal in its order dated
14.09.2012 and those findings were not disturbed by the leaned
Single Judge in the impugned order.
30. In Para 23 of its order dated 14.09.2012, the Industrial
Tribunal categorically recorded a finding after perusal of the
enquiry proceedings that a charge sheet was served upon the
delinquent workman, he filed his reply, thereafter both the parties
were granted opportunity to lead evidence and also to cross-
examine the witnesses. On behalf of the workman on various
dates, his representative appeared and on many dates of enquiry,
respondent No. 1-workman himself appeared. On such
consideration, learned Tribunal has arrived at a categoric finding
that the enquiry was fair and proper. This is what was held earlier
also by the Industrial Tribunal vide order dated 14.06.2006.
31. Even though none of the findings recorded by the Industrial
Tribunal were traversed by the learned Single Judge, in para 36 of
its order, learned Single Judge has recorded that the entire
proceedings were initiated against the writ petitioner-workman on
account of inherent malice and bias developed on account of
earlier proceedings initiated by him relating to his earlier
(32 of 34) [SAW-182/2019]
termination in the year 1981. Once the findings recorded by the
Industrial Tribunal on various issues, which related to fairness,
propriety and legality of the enquiry were not upset, the
conclusion that the enquiry was result of malice and bias was
without any basis. Learned Single Judge is swayed by the fact
that number of proceedings were taken up by both the sides and a
long drawn litigation continued between the parties, firstly with
regard to legality of termination in the year 1981 and during
pendency of that dispute at various levels, respondent No. 1-
workman was again issued charge sheets, which eventually led to
his termination on 08.04.1992. On such considerations and
without recording any finding with regard to correctness and
legality of the findings of the Industrial Tribunal recorded vide
order dated 14.09.2012, the order has been set aside on
impression of bias and malice as also harassment merely because
earlier the workman was terminated and then he was directed to
be reinstated. We are, therefore, inclined to hold that such
findings recorded by learned Single Judge in Para 36 and 37 of the
order are not justified and legally unsustainable.
32. Respondent No. 1-workman has cited number of decisions,
which related to violation of principles of natural justice on
account of non-supply of documents, legal requirement of
approval under Section 33(2)(b) of the ID Act, effect of refusal of
permission to delinquent employee to engage legal practitioner
whereas the employer appoints a legally trained personnel and
entitlement to back wages. However, in view of the findings as
recorded, respondent No. 1 does not get any aid of these
decisions in support of his case once it has been held that the
(33 of 34) [SAW-182/2019]
enquiry was fair and proper, documents were supplied,
opportunity of hearing was afforded and all other aspects, which
have been dealt with hereinabove.
33. Even though an argument has been raised by respondent No.
1-workman that application ought to have been filed under
Section 33(1)(b) of the ID Act and not under Section 33(2)(b) of
the ID Act, we find that the Industrial Tribunal vide its order dated
14.09.2012 recorded a finding that application has rightly been
filed under Section 33(2)(b) of the ID Act. However, before the
learned Single Judge, this issue was neither raised, nor the
learned Single Judge has recorded any finding on this issue
reversing the finding of the Industrial Tribunal. Therefore, we are
not inclined to examine the validity of the order from that point of
view. In any case, once we have ourselves examined the entire
aspect of fairness of enquiry and are satisfied that there was no
impropriety or unfairness in the enquiry proceedings, that issue
need not be gone into at belated stage.
34. Lastly, we find that respondent No. 1-workman in the writ
petition has also claimed relief that compliance of third award
dated 03.09.2003, notification dated 17.01.2006 and order dated
18.04.2006 passed in D.B. Civil Special Appeal (Writ) No.
831/2002 be ordered. In this regard, it is suffice to mention that
after first award was passed on 01.08.1985, in the absence of any
interim order, the workman was reinstated in service on
19.02.1986. Order dated 25.08.2007 passed by the Labour Court
in case LCC No. 49/2006 also reveals that back wages were paid.
Vide orders dated 14.02.2006 and 18.04.2006 passed by the
Division Bench of this Court in D.B. Civil Writ Petition No.
(34 of 34) [SAW-182/2019]
1996/2003 and D.B. Civil Review Petition No. 25/2006
respectively, it has been held that compliance of final award dated
03.09.2003 (relating to first termination in the year 1981) has
already been made by the appellant-company.
35. In view of above considerations and upshot of discussion on
various issues, we are inclined to set aside and accordingly set
aside order dated 30.10.2018 passed by the learned Single Judge
and dismiss the writ petition filed by respondent No. 1-workman.
36. Appeal is, accordingly, allowed. Interim applications, if any,
stand disposed off.
(FARJAND ALI),J (MANINDRA MOHAN SHRIVASTAVA),J
MANOJ NARWANI ///
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