WPMS/1646/2021
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                                     WPMS No.1646 of 2021
                                     Hon'ble Sharad Kumar Sharma, J.

(Via video conferencing).

Mr. Navneet Kaushik, Advocate, with Mr. Nikhil Singhal, Advocate, for the petitioner.

Mr. Ajay Singh Bisht, Additional CSC, for the State of Uttarakhand.

The petitioner had earlier approached this Court by filing a Writ Petition being WP(MS) No.428 of 2019, "M/s S.S. Stone Crusher Vs. State & others", in which the petitioner has given a challenge to the impugned orders of 28.09.2018, and the recovery citation dated 04.12.2018, but for the reasons best known to the petitioner, the petitioner instead of venturing into the merits of the matter has confined his relief, for an appropriate direction for the competent appellate authority to decide the appeal, and the interim relief application also which was then pending consideration in the appeal. In view of the concession granted by the counsel therein, the writ petition, was thus disposed of by the Coordinate Bench of this Court vide its judgment dated 19.02.2019, to decide the interim relief application, and the appeal, thus filed within a time period prescribed therein.

Under law, if the petitioner approaches a writ court praying for a certain relief, and particularly, when it relates to the relief of a writ of certiorari, for quashing the order dated 28.09.2018, and the consequential Recovery Citation dated 04.12.2018, and no decision has been solicited by the petitioner on the merits of the matter, it would amount to that the relief sought for by the petitioner, which has not been considered or granted by the Court, would legally be deemed to stand denied, and in that eventuality and based on the judgments reported in 2001 (1) SCC 73, 2006 (2) SCC 285, 2006 (9) SCC 292 and 2005 (8) SCC 58. The present writ petition, so far it gives challenge to the aforesaid two orders, which were already a subject matter under challenged in the earlier writ petition would not be sustainable.

The Hon'ble Apex Court in a judgment reported in 2001 (1) SCC 73, "State Bank of India Vs. Ram Chandra Dubey and others" has held that if the petitioner in a proceedings has claimed or prayed for number of reliefs, and the Court which is ceased with the proceedings, grants some of the reliefs and doesn't record any finding on the other reliefs which has been claimed, it will treated to have been denied. The relevant paragraph No.8, is extracted hereunder:-

"8.The principles enunciated in the decisions referred by either side can be summed up as follows:

Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself" conferred right for claim of back wages."

The same principle came up for consideration before the Hon'ble Apex Court in one of the judgments reported in 2006 (9) SCC 292, "Union of India & another Vs Kankuben & others", wherein, an identical view has been expressed by the Hon'ble Apex Court in paragraph Nos.4 & 5 of the said judgment, which was based on the principles of Ramchandra Dubey' case (Supra) and it is also reiterated the said principles on the basis of the judgment as reported in 2006 (2) SCC 282, "A.P. SRTC & another Vs. B.S. David Paul". The relevant paragraph Nos.4 and 5 of the aforesaid judgment are extracted hereunder:-

4. In State Bank of India v. Ram Chandra Dubey, this Court held as under:

7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment.

Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.

8. The principles enunciated in the decisions referred by either side can be summed up as follows:

Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages.

Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi- judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages

5. The position was recently reiterated by three-judge Bench of this Court in State of U.P. and Anr. v. Brijpal Singh.

In order to have an escape from the aforesaid observation made by the Court, learned counsels for the petitioner has argued that since there was a direction issued to decide the appeal, and the appeal itself has been decided on 26.09.2019. Hence under the principle of merger, the two orders which are already challenged in the earlier writ petition, would be an irrelevant, because they would stand merged in the decision taken by the appellate authority.

This Court is not in agreement with the tenacity of argument, extended by the learned counsel for the petitioner for the reason being, that in a peculiar circumstances of the case, the principle of merger qua the orders dated 28.09.2018 and 04.12.2018, will not apply in the instant case, particularly when, for the same relief, the earlier writ petition already stand disposed of. Hence this writ petition would be the second writ petition for same relief.

In that eventuality, the principles which this Court has already observed above that the relief claimed, if not granted stands denied, it would lead to an inference that it cannot be subsequently agitated, under the garb of the fact that the appeal itself was decided later.

It is petitioner, who had filed an appeal as against the order of the 28.09.2018, a litigant to an appeal is expected to be diligent in pursuing his remedies, which are provided under the law, if his appeal was pending before the competent authority, which was later on decided on 26.09.2019, it was quite reasonably expected that since the petitioner, was the appellant therein, he ought to have been diligent enough, to have persuaded the appellate proceedings and should have put a challenge to the appellate order within an appropriate time. The order happens to be of 26.09.2019, and in order to escape the bar of laches, which has been suffered by the petitioner, while giving a challenge to the appellate order dated 26.09.2019, he only contends that the fact, that he could not gathered the knowledge of the decision which was rendered in appeal on 26.09.2019, and hence he could not approach the writ court earlier, apart from the fact that on account of the Covid -19 pandemic situation, there were certain restrictions in his mobility, due to which he could not filed the writ petition.

Both the arguments are not acceptable by this Court for the reason being that during this period of lockdown on account of the Covid-19 pandemic situation, the High Court was still functioning, and the writ petitions, were still being filed through electronic devices, e-mail etc., only the physical appearance was exempted, and even the affidavits were exempted to be filed. Hence the petitioner cannot contend that because of the Covid 19, pandemic situation, he cannot filed the writ petition earlier.

As far as the defence taken from the prospective of knowledge, the law or the protection under the law, is only available to those litigants, who are vigilant of their legal rights vested under the law. If his own appeal has been decided in the year 2019, it was reasonably expected that he ought to have further pursued the same, and should have approached the appropriate superior statutory forum with the appropriate time period.

For the reasons aforesaid, I am not inclined to interfere in the writ petition, the writ petition is accordingly dismissed.

(Sharad Kumar Sharma, J.) 18.08.2021

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