Patna High Court
Parsuram Mishra And Ors. vs Union Of India (Uoi) And Ors. on 20 December, 1978
Equivalent citations: (1979)IILLJ117PAT
JUDGMENT Uday Sinha, J.
1. This is an application by 122 petitioners under Articles 226 and 227 of the Constitution of India for restraining the respondents from retrenching them as well as for holding that they are continuing in service and to pay them their wages. This application had been filed on 10.1.1978, but prior to it the petitioners had moved this Court by four writ applications (C.W.J.C. Nos. 320, 321, 322 and 335 of 1976) for reliefs similar to the present application which were dismissed by a Bench of this Court presided over by Shambhu Prasad Singh and Lalit Mohan Sharma, JJ. on 4.11.1977.
2. In February, 1970, the Indian Railway Board sanctioned a proposal for doubling of Hatia-Muri Railway Track on the South Eastern Railway. Casual labourers for the Project were employed. The Project was under charge of district Engineer, Bokaro Steel City, Ranchi Cell at Ranchi (respondent No. 2). There was also an Assistant Engineer for that Cell stationed at Ranchi. The Project was divided into three blocks. Works started in 1970 itself and the last block section was completed and opened to traffic in September, 1976. The case of the petitioners is that they apprehended, their illegal retrenchment in December, 1976 and, therefore, they moved this Court by four writ applications. C.WJ.C. No. 320 of 1976 was filed on 14.12.1976 against the apprehended retrenchment. This application was listed for admission on 15.12.1976. On that date the rule was issued and status quo as on 15.12.1976 was directed to be maintained. C.W.J.C. Nos. 321 and 322 of 1976 were filed on 15.12.1976 and orders were passed on 16.12.1976 restraining the respondents from retrenching them even if they had received the whole or part of retrenchment compensation. C.W.J.C. No. 335 of 1976 was filed on 21.12.1976 and in this application also interim orders similar to those in other applications were passed. The petitioners' case is that the retrenchment order passed on 15.12.1976 remained a dead letter and they continued to serve as casual labourers of the South Eastern Railway. On 18.11.1977 the names of the petitioners were struck off the rolls and they were directed by the respondents not to report for duty any further. The petitioners treating this as amounting to their retrenchment moved this Court by the present application for quashing their retrenchment alleged to have taken place on 18.11.77.
3. The contention on behalf of the petitioners is that the striking off their names from the roll of workmen amounted to retrenchment. It was also alleged that neither were they given one month's notice in writing indicating the reasons for retrenchment nor were they given one month's pay in lieu thereof. The statutory retrenchment compensation was also not paid to them. Thus according to the petitioners, the provisions of Section 25F(a) and (b) of the Industrial Disputes Act were thrown to the winds and, therefore, the retrenchment was invalid and liable to be struck down.
4. The respondents, on the other hand, have contended that the contention on behalf of the petitioners would have substance only if the factual premise were correct. According to them, the retrenchment became effective on 15.12.1976 itself when the notices indicating the reasons for the retrenchment of the workmen were pasted on the notice board and the wages, retrenchment compensation, etc., were paid or tendered to them, According to them, fifty of the petitioners (mentioned in paragraph 7 of the counter-affidavit) received their wages, compensation, etc. Thus according to the respondents, the mandate of Section 25F of the Industrial Disputes Act was carried out in letter and in spirit as a result of which the retrenchment of the petitioners became effective from 15.12.1976 at 7-30 A.M. itself. Although it had become effective yet, according to the respondents, out of deference to the orders passed by the High Court directing maintenance of status quo, the petitioners were retained on the rolls and were paid their wages month after month although no work was taken from them. They only used to report their attendance. When the four writ applications filed by the petitioners earlier were dismissed by this Court on 4.11.1977, the names of the petitioners were struck off the rolls. The striking off the names of the petitioners from the rolls was not retrenchment of the petitioners, but only a clerical part of the matter which had already been completed on 15.12.1976. According to the respondents, the petitioners had been paid wages uptill 18.11.1977 although they were not liable for it, but they did it only out of deference to the High Court's order.
5. There can be no manner of doubt that if retrenchment was effected on 15.12.1976 itself, there could be no question of second retrenchment in November, 1977. I shall presently consider the stand of the parties in regard to the retrenchment in December, 1976, but from the mere fact that the names of the petitioners were struck off the rolls in November, 1977, it cannot be held that they were in fact retrenched on 18.11.1977. Reliance placed by learned Counsel for the petitioners, therefore, on Delhi Cloth and General Mills Co. Ltd. v. Shambhu Nath Mukherji 1978 I L.L.J. 1 : 1978 L.I.C. 1695 is obsolutely ill-founded. The striking off the names of workmen in that case would certainly amount to termination of service, i.e., retrenchment. But in the instant case under consideration striking off the names of the petitioners was merely a clerical act. The submission made on behalf of the petitioners that in consequence of the injunction issued by this Court in the previous four applications the petitioners continued in service is devoid of any merit and has only got to be stated to be rejected. The retrenchment had taken effect on 15.12.1976 in the morning itself. The High Court did not strike down the action taken by the respondents. When the applications were dismissed the interim orders ceased to have any force and, therefore, the respondents were free to strike off their names without any peril of being hauled up for contempt of this Court's order. If retrenchment had been effected on 15.12.1976 itself, the petitioners could not be held to have been retrenched on 18.11.1977. The question of compliance with the provisions of Section 25F of the Industrial Disputes Act in November, 1977 is absolutely irrelevant.
6. Faced with this situation learned Counsel for the petitioners challenged the retrenchment alleged to have been effected on 15.12.1976. It was contended that the respondents had over-reached the Court in retrenching the petitioners on 15.12.1976 in the face of the fact that some of the petitioners had filed C.W.J.C. No. 320 of 1976, Grievance was also made of the fact that the authorities had called the police and thus payments were made under duress. These grievances are not worthy of any consideration and must be left at that.
7. Learned Counsel for the petitioners attempted to challenge the retrenchment effected on 15.12.1976 on various grounds, the most important of them being that the retrenchment had been effected on that date in breach of the provisions of Section 25F of the Industrial Disputes Act. More specifically it was contended, that no notices indicating the reasons for the retrenchment were served upon the petitioners. I regret, it is not open to the petitioners to challenge the retrenchment effected on 15.12.76. Their retrenchment was subject-matter of earlier writ applications, namely, C.W.J.C. Nos. 320, 321, 322 and 335 of 1976. All those applications were dismissed with costs. The retrenchment of the petitioners was thus upheld by this Court. The retrenchment of the petitioners having been upheld by this Court earlier I see no reason why this Court should permit them to agitate the same matter over again. In Daryao v. State of U.P. , the Supreme Court at paragraph 19 observed as follows (at pp. 1465-66):
We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of. a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe "to hold that such a summary dismissal is a dismissal on merit and as such constitutes a bar of res judicata against a similar petition filed under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.
This view was reiterated in Amalgamated Coalfield Ltd. v. Janapada Sabha Chhindwara , where Gajendragadkar, J. as he then was observed that:
"there can be no doubt that the general principle of res judicata applies to writ petition filed under Article 32 or Article 226", and again in Denial Modi v. Sales Tax Officer, Ratlam , the same view was reaffirmed. Hidayatullah C.J. in Tilokchand Motichand v. H.B. Munshi , observed as follows (at p. 901):
Then again this Court refrains from acting under Article 32 if the party has already moved the High Court under Article 226. This constitutes a comity between the Supreme Court and the High Court Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this Court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is somewhat inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarised as 'interest reipublicae res judicata non rescindi' but the motivating factor is the existence of another parallel jurisdiction in another Court and that Court having been moved, this Court insists on bringing its decision before this Court for review. Again this Court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this Court in a suitable case entertains the application before itself. Another restraint which this Court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this Court has refrained from taking action when a better remedy is to move the High Court under Article 226 which can go into the controversy more comprehensively than this Court can under Article 32.
The pronouncements of the Supreme Court leave no manner of doubt that the principles of res judicata apply to writ proceedings with all force. Mr. Tara Kant Jha appearing on behalf of the respondents vehemently submitted that the present application is barred by the principles of res judicata and the petitioners should not be permitted to re-agitate matters considered and disposed of by this Court earlier.
8. Mr. B.C. Ghose, learned Counsel for the petitioners in reply submitted that the earlier petitions had not been dismissed on merit, but that they had been dismissed on a preliminary ground that the applications were premature. Mr. B.C. Ghose is not right in that submission. The word "premature" has not been mentioned in any part of the judgment. When confronted with this situation, Mr. Ghose submitted that that must be the conclusion if the operative part of the order dismissing the applications is considered in the light of the fact stated in para 5 of the judgment of that case. In my view, this submission is ill-founded and must be rejected. When there is neither discussion nor order holding the applications to be premature, learned Counsel for the petitioners is not justified in submitting that the applications were dismissed on a preliminary ground that they were premature. It is manifest that C.W.J.C. Nos. 321, 322 and 335 of 1976 were filed after retrenchment had been effected on 15.12.1976. They were, therefore, certainly not premature applications. Mr. Ghose further submitted that C.WJ.C. No. 320 of 1976 at least had been filed prior to the retrenchment on 15.12.1976. Even so, S.P. Singh, J. observed in explicit terms in para 11 that the retrenchment was not illegal. I can do no better than quote the conclusions arrived at by the earlier Bench of this Court which are in the following terms:
These cases are not, therefore, cases where the respondents have failed to give a notice to the petitioners within a reasonable time of the date fixed for retrenchment of the petitioners. In my opinion, therefore, the petitioners cannot be held entitled to a writ on the ground that no notice in writing indicating the reasons for retrenchment has been given to them.
The conclusions quoted above must be held to have reference to all the four earlier writ applications. The distinction sought to be drawn between the result of C.W.J.C. No. 320 of 1976 on the one hand and the other three writ applications on the other is absolutely illusory and cannot be acceded to. In my view, therefore, there is no escape from the situation as held earlier by a Bench of this Court that the petitioners had been retrenched on 15.12.1976.
9. Mr. B.C. Ghose also submitted that although the matters in controversy in this application had been disposed of earlier, the petitioners were entitled to reagitate the matter because the matter relating to compliance with the provisions of Section 25F(a) and (b) had not been considered by the earlier Bench at least in so far as the petitioners in C.W.J.C. No. 320 of 1976 were concerned. It was submitted that it was not the case of the respondents in the earlier writ applications that notices indicating the reasons for their retrenchment had been pasted on the notice board on 15.12.1976. To substantiate his submission he drew our attention to the judgment in the earlier cases and impressed upon us that the stand of the respondents in that application was that it was not necessary to give any notice to the workmen indicating the reasons for retrenchment if one month's wages had been paid in advance at the time of retrenchment. This stand was countered by Mr. Tara Kant Jha. It was submitted by him that in the earlier applications the petitioners had conceded that notices were pasted on the notice board and, therefore, it was not necessary for the respondents to aver that notices had been pasted. Mr. Jha for the respondents is right in that behalf and his submission must be accepted.
Mr. B.C. Ghose reacted sharply to the above stand of Mr. Jha and submitted that the earlier writ applications were not before this Court (they were at Ranchi from where these applications arise) and, therefore, this Bench cannot rely upon the statement made by Mr. Tara Kant Jha in regard to the stand of the petitioners. If the stand taken by Mr. Ghose is to be accepted, then his contention that the respondents had not asserted in the earlier writ applications about pasting of the notices on the notice board must also be rejected. A plain copy of the judgment can be of no help to us. The recital of the cases of the parties in a judgment is not conclusive as to the stand on questions of fact. In that view of the matter, the submission of Mr. B.C. Ghose has no substance and must be rejected.
10. The respondents have explicitly asserted that notices indicating the reasons for retrenchment were pasted on the notice board on 15.12.1976 at 7-30 A.M. This was done in presence of witnesses. The mere denial of the petitioners is not worthy of any consequence. This must be so for the simple reason that a large number of workmen received their wage packets retrenchment compensation, etc., on 15.12.1976 itself as asserted by the respondents. In fact Mr. B.C. Ghose himself stated that the petitioners of C.W.J.C. No. 320 of 1976 with great difficulty managed to slip out from the police cordon without receiving the compensation and moved this Court on 14.12.1976. It is, therefore, obvious that the respondents tendered the retrenchment compensation, one month's notice pay and wages. In my view, therefore, I have no difficulty in holding that notices indicating the reasons for retrenchment were pasted on the notice board and the workmen were paid their due. Some did not receive though it was tendered to them. The authorities could do no better. In my view, therefore, the provisions of Section 25F (a) and (b) of the Industrial Disputes Act were complied in full measure. The retrenchment order is Annexure B to the counter-affidavit filed by the respondents. The respondents have effectively denied the assertion of the petitioners that retrenchment was not effected in accordance with the principles of first come last go, last come first go. The retrenchment of the petitioners was, therefore, perfect and complete on 15.12.1976. There was thus no retrenchment on 18.11.1976. It had already taken effect on 15.12.1976. The wages paid to the petitioners from 15.12.1976 up-till 18.11.1977 were gratuitous in deference to the High Court order. They were not entitled to it. The petitioners were never taken back in employment after 15.12.1976. The submissions urged on behalf of the petitioners are, therefore, devoid of any merit and must be rejected.
11. Learned counsel for the petitioners placed reliance upon 1978 B.B.C.J. (H.C.) 350 Hari Rai v. Union of India 1978 B.B.C.J. (H.C.) 418, Hirdai Mahto v. Union of India and 1978 B.B.C.J. (H.C.) 459, Hridai Mahto v. Union of India to show that the retrenchment of the petitioners was illegal and contrary to law. These cases can be of no assistance to the petitioners. Those were cases where the provisions of Section 25F(a) and (b) of the Industrial Disputes Act had not been complied. In the present case, the said provisions have been fully complied, as I have found earlier and as held by another Division Bench of this Court presided over by Shambhu Prasad Singh and Lalit Mohan Sharma, JJ. in C.W.J. C. Nos. 320, 321, 322 and 335 of 1976.
12. For the reasons, stated above. I find no merit in this application and it is accordingly dismissed with costs. Hearing fee Rs. 250.