Gauhati High Court
Khargeswar Narzary & 17 Ors vs The State Of Assam And Ors on 31 October, 2013
Author: T. Vaiphei
Bench: T. Vaiphei
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM
AND ARUNACHAL PRADESH)
WRIT PETITION(C) 6308/2010
1. Sri Khargeswar Narzary
S/O Harmahan Narzary
Resident of Kantalgury
P.O. Salakati, P.S. Kokrajhar
Dist. Kokrajhar.
2. Sri Milon Basumatary
S/O Late Jagat Basumatari
Resident of Jaranguri,
P.O. Tiniali, Dist. Kokrajhar
3. Sri Sunil Basumatari
S/O Late Sukur Singh Basumatari
P.O. Salakati (B.T.P.S) P.S. Kokrajhar
Dist. Kokrajhar (B.T.A.D.)
4. Sri Lakshmi Kr. Basumatari
S/O Kalicharan Basumatari
R/O Bortowgaon, P.O. Kaligaon
P.S. Bijini, Dist. Kokrajhar
5. Sri Aswini Kr. Roy
S/O Late Kneineram Roy
R/O Diajhari, P.O. Holtugaon
P.S. Kokrajhar (B.T.A.D.)
6. Sri Nirpen Barman
S/O Late Netaram Barman
R/O Laltari, P.O Kalipukhuri
P.S. Kokrajhar, Dist. Kokrajhar (B.T.A.D.)
7. Sri Suresh Debnath
S/O Purna Debnath
R/O Salakati, P.O. Salakati
Dist. Kokrajhar (B.T.A.D.)
WP(C) No. 6308/062010 Page 1 of 15
8. Sri Lokendra Ch. Boro
S/O Nileswar Bora
R/O Khantalguri, P.O. Salakati
P.S. Kokrajhar, Dist. Kokrajhar
9. Sri Rabiram Boro
S/O Late Noali Boro
R/O Banduguri, P.O. Salakati
P.S. Kakrajhar, Dist. Kokrajhar
10. Sri Purna Nath
R/O Antiabari
S/O Raticharan Nath,
P.O. Haluadol
P.S. Kokrajhar, Dist. Kokrajhar
11.Sri Najin Ram Rabha
S/O Late Babu Ram Rabha
R/O Dampara, P.S. Khelnapar
P.S. Abhyapuri, Dist. Goalpara
12. Sri Simbu Barman
S/O Late Baneswar Barman
R/O Noonmati P.O. Hatipota (Salkocha),
P.S. Bilari Para, Dist. Kokrajhar.
13. Sri Budhiram Basumatari
S/O Gokul Basumatari
R/O Haluadal, P.O. Haluadal
P.S. Kokrajhar, Dist. Kokrajhar
14. Sri Haricharan Roy
S/O Ganga Ram Roy
R/O Titaguri (Hauladol)
P.O. Haluadol, P.S. Kokrajhar
Dist. Kokrajhar, (B.T.A.D.)
15. Sri Ramesh Nath
S/O Basiram Nath
R/O Fokiragram, P.O. Fokiragram
P.S. Kokrajhar, Dist. Kokrajhar.
WP(C) No. 6308 OF 2010 Page 2 of 15
16. Sri Umesh Kalita
S/O Late Ghana Ch. Kalita
R/O Dangarpar,
P.O. & P.S. Bhabanipur
Dist. Barpeta
17. Sri Pabitra Kr. Rabha
S/O Late Duburam Rabha
R/O Narikola (Rabha para)
Dist. Bongaigaon
18. Sri Dhruba Kr. Nath
S/O Akshya Kr. Nath
R/O Singimari
P.O. Lakhi Gaon P.S. Bilasipara
Dist. Goalpara
(All have common cause of action)
........Petitioners
-Versus-
1. The State of Assam
Through the Commissioner and
Secretary, Ministry of labour &
Employment,
Dispur, Guwahati.
2. The Assam Power Generation
Corporation Ltd., represented by its
Managing Director
Paltan Bazar, Guwahati-8
...... Respondents
PRESENT THE HON'BLE MR. JUSTICE T. VAIPHEI WP(C) No. 6308 OF 2010 Page 3 of 15 For the petitioners : Mr. B.K. Bhattacharjee, Mr. R. Zaman, Mr. A. Chetia, Advocates For the respondents : Mr. B.D. Das, SC, ASEB Ms. H.M. Phukan, GA.
Date of Hearing : 26.8.2013
Date of judgment : 31-10-2013
JUDGMENT AND ORDER (CAV)
1. The sole question which falls for consideration in this writ petition is whether the Presiding Officer, Labour Court, Guwahati is correct in holding that Reference Case No. 7 of 2009 is hit by the principles of res judicata?
2. To appreciate the controversy, I will first deal with the facts of the case as pleaded by the petitioners. There are 18 petitioners in this writ petition. They were initially appointed as regular employees at the Bongaigaon Thermal Power Station (BTPS), Dhaligaon on different dates between 1981 and 1986. Later, their appointment letters were recalled and were then shown to be contract labours; they were issued ID cards instead of appointment letters but by accommodating them in official residential quarters. They were stated to have been treated as regular employees for all practical purposes. However, in the year 2002, their services were abruptly terminated purportedly on the ground that the BTPS had stopped production and that the contractual period of the contractor supplying labours had also stood expired. Aggrieved by this, the WP(C) No. 6308 OF 2010 Page 4 of 15 petitioners filed WP(C) No. 4855 of 2006 before this Court, which by the order dated 3-3-2009 disposed of the writ petition by directing them to seek alternative remedy under the Industrial Disputes Act, 1947 ("the Act" for short).
3. In the meantime, similarly situated workmen and their Union from Chandrapur Thermal Power Station (under the same respondents) had also approached the Government of Assam for referring their termination dispute raised by them under the Act, which the Government of Assam accordingly did. The Tribunal by the award dated 31-3-2006 in Ref. Case No. 2 of 2003 had directed the Management to reinstate them to service. This was challenged by the Management before this Court in WP(C) No. 4573 0f 2006, but the award was upheld by this Court vide its judgment dated 6- 3-2007. It may be noted that two other labour unions, namely, Kokrajhar Zilla Thika Shramik Union and Shramik Parishad Trade Union (according to the petitioners, they are not members of these Unions) had also initiated two proceedings before the Labour Court in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003. It may be noted that in Reference Case No. 8 of 2002, some 237 contract labourers constituted the second party while 364 contract labourers constituted the second party in Reference Case No. 6 of 2003. The Labour Court by the common award dated 27-1-2006 held that the so-called workmen in both the Reference Cases are contract labourers under labour contractors, and the non-renewal of the contract to engage them beyond the specified period of contract did not amount to termination of their services nor did such termination constitute mala fide actions and were, therefore, not entitled to any relief.
4. Aggrieved by this, the two Unions approached this Court in WP(C) No. 5154 of 2006, which was dismissed by this Court on 10-1-2007 by holding that there was no sufficient ground for its interference. According to the petitioners, inasmuch as they are not WP(C) No. 6308 OF 2010 Page 5 of 15 parties to this common award dated 27-1-2006, they filed WP(C) No. 4855 of 2006 before this Court, which the order dated 3-3-2009 disposed of the writ petition by directing them, like other similarly situated persons, to avail of alternative remedy provided for under the Act. When the petitioners had already taken steps for initiating the reference proceeding i.e. Reference Case No. 7 of 2009 before the Labour Court, the respondent No. 3 filed WP(C) No. 4620 of 2009 before this Court challenging the legality of the proceeding on the ground of res judicata by contending that the same subject- matter, having been finally adjudicated upon between the same parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003, Reference Case No. 7 of 2009 is barred by the principles of res judicata, is liable to be closed. This Court, after hearing the parties, disposed of the writ petition on 19-5-2010 by remitting the case to the Labour Court to verify the identities of the private respondents (the petitioners herein) of the writ petition and the subject-matter of the Reference Case No. 7 of 2009 as the well as the identities of the parties and the subject-matter of Reference Case No. 8 of 2002 and that of Reference Case No. 6 of 2003 and thereafter pass necessary order on the basis of the result of such verifications. After hearing both the parties, the Labour Court passed the impugned order dated 5-9-2010 holding that Reference Case No. 7 of 2009 was not maintainable being barred by the principle of res judicata and that no fresh award could be passed on the terms set by the Government of Assam through the said reference notification No. GLR. 109/2009/8-A, dated 26-5-2009. The Labour Court accordingly dropped the reference case without answering the issues/terms referred to by the Government through that notification by holding that the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 on the one hand and the parties in Reference Case No. 7 of 2009 are one and the same parties.
WP(C) No. 6308 OF 2010 Page 6 of 155. Assailing the impugned award, Mr. B.K. Bhattacharjee, the learned counsel for the petitioners, submits that the approach of the Labour Court in holding that the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 on the one hand and Reference Case No. 7 of 2009 are one and the same is fallacious: the petitioners are never members of the two Unions nor are they ever affiliated to such Unions. He further contends that it is not clear as to how the names of the petitioners were mentioned by the Labour Court in those reference cases: the petitioners were never aware of the filing of those cases by the two Unions nor did they ever give their consent for representing them. Drawing my attention to the issues framed in the said Reference case, the learned counsel maintains that the case of the petitioners throughout has been that they were not contract labourers but workmen under the principal employer and not under any labour contractor: this can be demonstrated by the finding of the same Labour Court in the award dated 27-1-2006 in para 7 thereof that the concerned workers are all workmen coming within the definition in Section 2(s) of the Act. As the findings of the Labour Court are perverse, submits the learned counsel, the impugned award is liable to be set aside. It is also contended by him that when there is no similarity between the parties in the three Reference cases, the question of applying the principles of res judicata does not arise so as to bar the Tribunal from hearing Reference Case No. 7 of 2009. He, therefore, strenuously urges this Court to dismiss the writ petition.
6. The impugned order is, however, supported by Mr. BD Das, the learned Standing Counsel for the respondent-Board, who contends that when the parties in both the set of Reference cases are one and same and the disputes raised therein are directly and substantially in issue in both the set of Reference cases, the Labour Court is correct in holding that Reference Case No. 7 of 2009 is barred by the principles of res judicata. Claiming that the writ petition is vexatious, frivolous and an abuse of process of Court, the WP(C) No. 6308 OF 2010 Page 7 of 15 learned Standing Counsel forcefully submits that the writ petition is liable to be dismissed with costs.
7. After going through the materials on record and on hearing the learned counsel appearing for the parties, it becomes obvious that the first point for consideration is whether the petitioners herein, who are parties in Reference Case No. 9 of 2009, were also parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003. It is by now well-established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principle of res judicata laid down under Section 11 CPC are applicable including the principles of constructive res judicata. Courts are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided that the court trying the subsequent proceedings is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. In my opinion, the correct law, with due respect, is laid down by the Division Bench of the Andhra Pradesh High Court in Jujjuvarapu Kotamma v. Pappala Simhachalam and ors., AIR 1969 AP 76. Paragraphs 5, 6 and 7 of the judgment, which are quoted below:
5. As we have stated at the very outset, the only question of res judicata we are concerned is not so much with the specific provisions of this doctrine as with the specific provisions of Sestion 11 CPC which governs the case. Learned Counsel Mr. K. Ramchandrarao, has rightly argued that the general principles of res judicata based, as they are on the avowed policy of law that no one should be vexed twice over in respect of the same matter and that there should be finality to the decisions of courts and consequent end to litigation, are wider than the provisions in that behalf contained in S. 11 C.P.C. and are applicable to cases which do not come within the four WP(C) No. 6308 OF 2010 Page 8 of 15 corners of the said section. It is well settled that where a case does fall within the terms of Section 11 C.P.C., the conditions laid down therein must be strictly complied with. If the conditions prescribed therein under which the decision is a suit can be res judicata are not satisfied, it is not permissible of res judicata. This argument gains sufficient strength also by reason of the compelling authority of the Supreme Court in Janakirama Iyer v. Nilakata Iyer, AIR 1962 SC 633.
There Ganjedragadkar, J. (as he then was) speaking for the Court observed thus:
"Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other. In our opinion, therefore, there is no substance in the ground that the present suit is barred by res judicata. ..."
Thus the question raised has to be decided strictly on the provisions of Section 11, C.P.C. and no other. The said section so far as material for our purpose, read thus:-
"11. No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and had been heard and finally decided by such Court.
Explanation I .......................
Explanation II ........................
Explanation III ........................
WP(C) No. 6308 OF 2010 Page 9 of 15
Explanation IV ........................
Explanation V ........................
Explanation VI. Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the person so litigating."
The contention is that the present case governed though as it is by Section 11 does not satisfy the conditions of Section 11 as the plaintiff in the present suit was neither a party to the former suit nor can she be held to be a person claiming under any of the parties to the suit. The section refers to "the same parties" or "parties under whom they or any of them claim." The expression 'same parties' is self-explanatory. It means that some persons in the former suit who were parties to that suit. For the purpose of Section 11 C.P.C., it may be borne in mind that a party is a person whose name on the record as the time of the decision. In case his name is struck off at any stage of the suit or he is discharged from the suit or his name was introduced by fraud or without knowledge or he was a minor on record unrepresented by a guardian, he cannot be said to be a party to the litigation. Similar is the case with the person who applied in vain to be brought on record. There may be other cases besides. It is difficult to give an exhaustive list of the same. It is sufficient to bear in mind that the person must be in fact a party to the former litigation at the time of decision of the case.
Judged thus, it cannot be postulated that the plaintiff was a party to the former suit. Indeed she was in no way a party to the suit. She was not sought to be brought on record even WP(C) No. 6308 OF 2010 Page 10 of 15 though defendant 5 set up title for the period before he himself acquired right by virtue of the sale deed executed by her. After she had sold her right she may not concern herself with any dispute in relation to that land until it becomes necessary for her to do so which could happen only in the event of success of the plaintiff in that case when she may be called upon by the 5th defendant to discharge her obligation under the sale deed. Nor was it incumbent upon her to make herself a party to the said suit. If the plaintiff wanted to bind her they could make her party as soon as they came to know of her in the same manner as the plaintiff in this suit, notwithstanding their transfer of right in favour of defendant 4 who is in possession, has been made parties to this litigation. As held in Narhar v. Narain, AIR 1920 Nag 184 at p. 186, the party merely interested in litigation cannot be a party to the suit. Such a person is neither bound to make himself a party nor can he be bound by the result of the litigation. It must be noted that the provision refers to the same parties and does not introduce any fiction in that behalf. It follows that the plaintiff was not eo nominee a party cannot come within the description of party to the former suit. So the dispute between defendants 1 to 3 and plaintiff cannot be said to be a dispute between the same parties within the meaning of Section 11 C.P.C.
7. Then the next question is whether she is a person claiming under a party to the former suit. The expression used in Section 11 is thus between parties under whom they or any of them claim. The underlying policy seems to be that a decision obtained in a properly constituted proceeding will bind not only the parties but all persons on whom right or interest may devolve. A person is said to claim under another when he derives his title through that other by assignment or otherwise. The right claimed by him must be attributable to the party in the former suit and further this right must have been acquired WP(C) No. 6308 OF 2010 Page 11 of 15 subsequent to the commencement of the said suit. As a privy or representative in interest he would then be bound by the decision reached against his predecessor in interest. It is unnecessary here to detail the various aspect of this question. Suffice it to say that the plaintiff is not claiming any right from him which she may set up in the case. On the other hand it was she who had conferred on him right in the property by executing it a sale deed. If at all it is defendant 5 who can be said to possibly claim under the plaintiff but not vice versa. Section 11 does not contemplate a case of a person who is a predecessor-in-interest of a party to the former suit. The expression "under whom" is inconsistent with any such theory. If she set up any claim in this case it is in her own right and not at any rate under defendant 5 who was a party to the former suit.
(Underlined for emphasis)
8. Who then are the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003? On perusal of the cause title of Reference Case No. 8 of 2002, the names of the petitioners No.1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 18 were mentioned as members of the Kokrajhar Zilla Thikia Shramik Union, which was the second party therein whereas the names of the petitioners No. 6, 11 and 17 were mentioned members of the Kokrajhar Zilla Thika Sramik Union, which also was the second party in Reference Case No. 6 of 2003. The case of the petitioners is that they are never aware of the two Reference cases nor are they members of the said Unions and the said two Unions, therefore, did not and could never represent them in such proceedings. In fact, they had filed W.P.(C) No. 4855 of 2006 before this Court challenging the termination of their services by the respondent-Board. As already noticed, the writ petition was disposed of by this court on 3-3-2009 by granting them the liberty to avail of the alternative remedy envisaged under the Act. It is interesting to note that at paragraphs 14, 15 and 16 of the WP(C) No. 6308 OF 2010 Page 12 of 15 said writ petition, the petitioners had specifically pleaded that they did not have any knowledge about the two Reference proceedings and that they were not members of Kokrajhar Zilla Thika Shramik Union, which was the 2nd Party in that case. However, such plea was not specifically denied by the respondent-Board in their affidavit-in-opposition.─ See paragraph 18 of their affidavit. The plea taken by the petitioners in paragraph 15 of their writ petition that "the so-called "Kokrajhar Zilla Thika Shramik Union" was not a registered trade union as required under the law and, therefore, could not represent them in the Reference cases, is also not specifically controverted or denied by the respondent-Board in their affidavit.─ See paragraph 15 of their affidavit.
9. The Labour Court recorded the finding that the workmen of the two reference cases did not challenge the order dated 10-1-2007 and that the common award by it on 27-1-2006 had remained undisturbed and had, therefore, attained finality. On the question as to whether both the eighteen workmen and the Management of Bongaigaon Thermal Power Station (ASEB) ADGCL were parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003, the Labour Court did not find any difficulty in holding that the Management of Bongaigaon Thermal Power Station (ASEB) APGCL, Salakhati was the first party in both Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003. It may be noted that in Reference Case No. 8 of 2002, some 237 contract labourers constituted the second party while 364 contract labourers constituted the second party in Reference Case No. 6 of 2003. The Labour Court, after perusing the list of contract labourers whose names were found in Reference Case No. 8 of 2002, found that except for the names of the petitioners No. 6, 11 and 17 whose names are found in Reference Case No. 6 of 2003, the names of the remaining fifteen petitioners were there in Reference Case No. 8 of 2002. The Labour Court further found that all the 18 workmen of Reference Case No. 7 of 2009 were also parties in Reference Case No. 8 of 2002 and WP(C) No. 6308 OF 2010 Page 13 of 15 Reference Case No. 6 of 2003 and that the disputes involved between them therein had been adjudicated by it vide the common Award dated 27-1-2006. The Labour Court also found that the Management of Bongaigaon Thermal Power Station owned by the Assam State Electricity Board (ASEB) has now been changed to Assam Power Generation Company Ltd. It, therefore, held that the parties in Reference Case No. 7 of 2009 of the one hand and the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 on the other are one and the same parties.
10. In my opinion, the approach of the Labour Court is fallacious by proceeding on the presumption that just because the petitioners were mentioned as members of the Kokrajhar Zilla Shramik Union and Sramik Parishad Trade Union, who were the second parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003, they were already represented in those two cases and were, therefore, barred by res judicata from prosecuting Reference Case No. 7 of 2009. In the instant case, the respondent-Board is unable to prove that the writ petitioners are members of the Kokrajhar Zilla Thika Sramik Union and Sramik Parishad Trade Union or that they had the knowledge that they were represented by these two unions in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 or that the two unions are registered societies. The principle of res judicata is a mixed question of fact and law. But it has to be specifically pleaded, and party relying on the principle of res judicata should place before the court all material particulars which would be sufficient to give a finding whether the particular case is barred by the principle of res judicata. In this view of the matter, it is incomprehensible as to on what evidence the Labour Court proceeded to hold that Reference Case No. 7 of 2009 is hit by the principles of res judicata. In my judgment, the findings of the Labour Court are perverse and cannot be sustained in law. Once it is found that the parties in both the Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 on the one hand and the parties WP(C) No. 6308 OF 2010 Page 14 of 15 in Reference Case No. 7 of 2009 are not the same parties or claiming under the same title, it is not necessary to burden this judgment with discussion on the further issue of whether the issues in the two Reference cases are directly and substantially in issues in Reference Case No. 7 of 2009, though I am tempted to say that they do have striking similarities. It is thus obvious that the Labour Court has improperly exercised its jurisdiction in dropping Reference Case No. 7 of 2009, and this call for the interference of this Court.
11. For what has been stated in the foregoing, this writ petition is allowed. The impugned Award dated 5-9-2010 passed by the learned Presiding Judge of the Labour Court in Reference No. 7 of 2009, accordingly, is set aside. Reference Case No. 7 of 2009 stands restored to the file of the Labour Court for fresh decision on merit in accordance with law. As there is already considerably delay in disposing of the reference case on merit, an attempt will be made by the Labour Court, Guwahati to dispose of the case within a period of six months from the date of receipt of this judgment. Transmit the LC record forthwith. No costs.
JUDGE TDR WP(C) No. 6308 OF 2010 Page 15 of 15 WP(C) No. 6308 OF 2010 Page 16 of 15