Delhi High Court
Indian Tourism Development ... vs Delhi Administration And Ors. on 8 July, 2002
Equivalent citations: (2003)IIILLJ77DEL
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. These writ petitions involving common question of law and fact were taken up for hearing together and are being disposed of by this common judgment.
The basic fact of the matter is not in dispute.
2. The unofficial respondent herein was employed as a Doctor in the India Tourism Development Corporation Ltd. and at the relevant point of time, he was serving under the petitioner herein. His services were terminated by reason of an order. Questioning the said order of termination, the unofficial respondent herein filed a writ petition before this Court which was marked as CWP No. 111/1978. Before this Court in the aforementioned writ petition the unofficial respondent raised the following contentions:
1) The services of the petitioner therein being permanent, his services could not have been terminated by issuing only a three months' notice.
2) The order of termination suffers from the vice of mala fides.
3. A Division Bench of this Court vide order dated February 27, 1978 negatived both the aforementioned contentions. It was held that there was no merit in the writ petition and thus the same was dismissed in liming. Despite the said order having attained finality an industrial dispute was raised and the first respondent herein being the appropriate Government referred the dispute for adjudication before the Labour Court. These three writ petitions have been filed questioning the final orders and award passed by the Labour Court.
4. Mr. S.N. Bhandari, learned senior counsel appearing on behalf of the petitioner would submit that having regard to the fact that the unofficial respondent had elected to file a writ petition before this Court, the industrial dispute raised by him was not maintainable. The learned senior counsel would contend that in a case of this nature, doctrine of election shall be squarely applicable. In that view of the matter, the Labour Court erred in exercising its jurisdiction in favor of the unofficial respondent. The learned senior counsel would further contend that in the event it is held that the order dated February 27, 1978 passed in the writ petition filed before Court attained finality, the first respondent herein had no jurisdiction to make a reference before the Industrial Tribunal for adjudication of the purported industrial dispute in exercise of its jurisdiction under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act').
5. Mr. Ashok Aggarwal, learned counsel appearing for the respondents would, however, submit that the aforementioned order dated February 27, 1978 could not be abar for raising an industrial dispute under the provisions of the Act.
6. The questions raised in these writ petitions were raised before the Labour Court. The contention of the petitioners herein have been negatived by the Labour Court stating:
"Before parting with this order I also dispose off the contention of the management made in the written arguments to the effect that the writ petition was filed by the workman in the High Court and that same was dismissed in liming and that when industrial dispute was raised before the Conciliation Authority, he declined to refer the same on the ground that the applicant was not the workman. The applicant has not disputed these facts of the management. Even if the writ petition was dismissed by the Hon'ble High Court against the termination of the workman, it failed to understand to appreciate the argument of the management how the applicant is barred to come to the Labour Court under the Industrial Disputes Act claiming himself to be a workman. I, therefore, find the contentions of the management without basis particularly when this plea was raised in the written statement also but no issue with regard to the principles of res judicata was framed in this case when two issues were framed by my predecessor i.e. firstly "whether the applicant is workman or not and if so, to what amount, if any, he was entitled."
7. The said unofficial respondent approached this Court as according to him, the petitioner herein was a 'State' within the meaning of the Article 12 of the Constitution of India. He, therefore, could either in his capacity as a workman, raise an industrial dispute or file a writ petition questioning the order of his termination. He had elected to file the writ petition. The question which arises for consideration in these writ petitions is as to whether, having so elected and having failed in his attempt in the said writ petition, he could have raised an industrial dispute under the provisions of the Act? The answer to the question must be rendered in the negative. As noticed hereinbefore, the writ petition although dismissed in liming, the contentions raised therein have squarely been dealt with by the Division Bench of this Court, the contentions raised in the said writ application have been negatived by a speaking order. The matter might have been different had the writ petition been dismissed in liming by a non-speaking order. The matter might have also been different if this Court having regard to the availability of the alternate remedy refused to entertain the writ petition. It will be a repetition to state that this Court not only entertained this writ petition, but went into the merit of the matter. Once the merit of the matter had been entered into, in our opinion, the unofficial respondent could not have raised any industrial dispute on the self- same cause of action.
8. We may notice that the Full Bench of the Punjab & Haryana High Court in the case of Sukhi Ram v. State of Haryana reported in 1982 Lab.I.C. 1282 had the occasion to consider the matter wherein the following question was raised:
"Whether a Civil Court has no jurisdiction to entertain a suit filed by a worker employed in a State Department Undertaking whose service is protected by Article 311 of the Constitution of India, and who did not take any steps to have the dispute referred to a Labour Court or a Tribunal under Section 10 of the Industrial Disputes Act."
9. Justice S.s.sANDHAWALIA, speaking for the Full Bench referred to the decision of the Apex Court in Premier Automobiles Ltd. v. Kamlaker Shantaram Wadke :
"Coming now to the second distinct category where the right or obligation giving rise to the industrial dispute springs from a source other than the Act that is, under the general law (including therein any other statutes) then under principle (2) the workman is expressly given two alternative remedies. In such a case, it is in his discretion to either take resort to the ordinary jurisdiction of the civil Courts or to seek the remedies under the Act. However, he must distinctly elect his remedy. It is now authoritatively settled that he cannot have both. He is to choose one or the other.
In the present case, as already noticed in para 6, it is the common case that the dismissal or removal of workmen here raises a dispute arising out of the rights or liabilities under the general or the common law. Once that is so, principle (2) of Premier Automobiles Ltd. case 1975-II-LLJ-445 (supra), would be at once attracted and the workmen would be entitled to elect either of the alternative remedies available to them. There is no dispute here that the workmen have not even remotely resorted to any of the remedies under the Act. No industrial dispute was sought to be raised on their behalf nor any reference claimed under Section 10 of the Act. They had straightway made their election and chosen to agitate their rights in the civil Courts. Both on principle and binding precedent, therefore, they would be clearly entitled to claim relief by way of a civil suit."
10. Yet again one of us (A.K.SIKRI, J.), in Ratnaswamy Palledar v. Secretary to Government of NCT of Delhi and Anr. reported in 2001-III-LLJ (Suppl)-788 (Del) while dealing with the doctrine of election laid down the following dicta:
"In the present case this Court had dismissed the writ petition by passing speaking order. It is a matter of common knowledge that many a times, Courts dispose of the writs at admission stage by passing detailed order. Once the petitioner challenged the order of punishment by filing writ petition and the said writ petition was dismissed on merits the effect of that is to conclude the matter inter partes. The matter having thus concluded cannot be agitated again before other forum stating that the ground taken now is different. As already pointed out, it was for the petitioner to choose one of the remedies available before him. Once he opted for a particular remedy, he did so with all the limitations attached to it. It was his own volition without any imposition. Thus various judgments cited by the petitioner are not applicable to the facts of this case.
It is now well settled that the appropriate Government while deciding as to whether the dispute is to be referred for adjudication or not, acts in administrative capacity and the order which is passed, is of administrative nature. While passing such an order the appropriate Government is not supposed to decide the questions which are to be decided by the Labour Court and/or Industrial Tribunal by way of adjudication. However, it is open for the appropriate Government to determine as to whether any industrial dispute exists which needs reference to the Labour Court and/or Industrial Tribunal for adjudication."
11. In view of the aforesaid decisions, we are of the opinion that the learned Labour Court was not correct in holding that the reference was maintainable. Once it is held that the appropriate Government had no jurisdiction to exercise its discretion under Section 10 of the Act having regard to the decision of this Court in the aforementioned writ petition, we feel that the learned Labour Court must be held to have misdirected itself in holding that the reference was maintainable and passing the impugned award. Furthermore, even in a case of this nature, the doctrine of res judicatal constructive res judicata would clearly be applicable.
12. For the reasons aforementioned, the impugned awards cannot be sustained which are set aside accordingly. The writ petitions are allowed. Although we have allowed the writ petitions having regard to the fact that the unofficial respondent, by reason of an interim order, was directed to be paid by the applicant interim maintenance at the rate of Rs. 800/- per month, we are of the opinion that no recovery therefore be made.
13. In the peculiar facts and circumstances of the cases, there shall, however, be no order as to costs.