Jharkhand High Court
The Employers In Relation To The ... vs Union Of India (Uoi) And Ors. on 25 August, 2003
Equivalent citations: [2003(4)JCR200(JHR)], 2004 LAB IC 707, 2004 AIR - JHAR. H. C. R. 119, (2004) 3 LAB LN 1112, (2003) 4 JCR 200 (JHA), (2003) 99 FACLR 790, (2003) 4 JLJR 255, (2004) 2 CURLR 394
Author: Tapen Sen
Bench: Tapen Sen
JUDGMENT Tapen Sen, J.
1. In this writ application, the petitioner (the Management of Mudidih Colliery of Sijua Area of M/s. Bharat Coking Coal Limited) has challenged the validity of the notification dated 29.1.1999 (Annexure 8) issued by the Desk Officer, Ministry of Labour, New Delhi (respondent No. 2), whereby and whereunder the following dispute has been referred for adjudication under the provision of Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") :--
"Whether the action of the Management of Mudidih Colliery of M/s. BCCL in dismissing Sri R.K. Prasad, Lamp Cabin Incharge from the services of the Company w.e.f. 31.12.1985 only on the ground of unauthorized absence w.e.f. 28.8.1984 to 19.10.1984 which the Management has failed to establish the same through any documentary evidence is justified? If not, to what relief the concerned workman is entitled."
The petitioner has further prayed for a writ of mandamus commanding upon the concerned respondents to forbear from giving effect to or acting in pursuance of the aforesaid impugned order.
2. The facts of this case are necessary to be considered and taken note of. According to the petitioner, one R.K. Prasad (concerned workman) was proceeded against departmentally vide charge-sheet dated 19.10.1984. At paragraph 9 of the writ application, it has been stated that the enquiry proceedings were adjourned time and again and finally the Enquiry Officer came to the conclusion that the workman was avoiding and, therefore, he proceeded and the proceedings were concluded ex parte on 11.6.1985. Thereafter the enquiry report was submitted on 18.6.1985 holding that Shri R.K. Prasad was guilty of misconduct. Thereafter the report and other documents were examined by the disciplinary authority and an order of dismissal was passed on 31.12.1985. Being aggrieved, the concerned workman raised an industrial dispute which finally led to the submission of a failure report and consequent reference to the Central Government Industrial Tribunal for adjudication of the following dispute :--
"Whether the demand of Shri R.K. Prasad, Ex. Camp Lamp Incharge of Mudidih Colliery of Sijua Area of Bharat Coking Coal Ltd., who was dismissed from service from 31.12.1985 that he should be reinstated in service by the Management, is justified? If so, to what relief he is entitled."
3. The aforementioned reference was registered before the Tribunal as Reference Case No. 279 of 1986 wherein all the parties appeared and contested the matter. By Award dated 26.7.1988 as contained in Annexure 1, the Tribunal held that the demand of the concerned workman (who was dismissed from service with effect from 31.12.1985) that he should be, reinstated in service was not justified and the concerned workman was not entitled to any relief.
4. Before proceeding any further, it would be relevant, therefore, to briefly dwell on the principle point of reference which became a subject matter of reference Case No. 279 of 1986 referred to above. The reference was that the concerned workman who was dismissed from service from 31.12.1985 demanded that the action of the management was unjustified and, therefore, he should be reinstated in service. In answer to this, the Tribunal passed the award holding that the demand of the concerned workman to the effect that he should be reinstated was not justified and that the concerned workman was not entitled to any relief.
5. Upon conclusion of the reference in the manner indicated above, the concerned workman filed CWJC No. 1411 of 1989 (R) before the then Ranchi Bench of the Patna High Court wherein he, inter alia, prayed for quashing of the award dated 26.7.1988 and also prayed for quashing the order by which he was dismissed from service with effect from 31.12.1985. The aforementioned writ application bearing CWJC No. 1411 of 1989 (R) was dismissed by a reasoned judgment dated 14.8.1989 holding, inter alia, that the Court did not find any reason to interfere with the findings of the Tribunal. Thereafter, the petitioner challenged the order of the said Division Bench passed on 14.8.1989 before the Hon'ble Supreme Court of India by SLP No. 13313 of 1989 and by order dated 5.12.1989, the said Hon'ble Supreme Court of India also dismissed the SLP. Thus the Award dated 26.7.1988 holding that the demand of the concerned workman for reinstatement was not justified and that the concerned workman was not entitled to any relief, attained finality.
6. The concerned, workman was not satisfied. He started a second round of litigation and this time, through the Bihar Shramik Sangh through its General Secretary (respondent No. 3) raised yet another dispute in respect of his dismissal before the Assistant Labour Commissioner, Dhanbad. The conciliation proceedings were resorted to which ended in a failure and, accordingly, a failure report was forwarded to the Central Government. On 20.1.1992, the Government of India, Ministry of Labour issued letter to the concerned workman as also the General Manager of the Colliery (Annexure 4) informing them that there did not appear any ground for making any reference to the Tribunal for adjudication because the dispute had already been adjudicated by the Central Government Industrial Tribunal No. II, Dhanbad in Reference Case No. 279 of 1986 vide Award dated 26.7.1988 (Annexure 1). The aforementioned letter is Annexure 4 appended to the writ application. Being still not satisfied, the concerned workman through the aforementioned Bihar Shramik Sangh filed CWJC No. 448 of 1992 (R) wherein it was, inter alia, prayed that a direction be made upon the Central Government to refer the matter to the Tribunal for adjudication.
7. Curiously and surprisingly M/s. BCCL was not even impleaded as a party in that writ application. By order dated 13.2.1992, a Division Bench disposed of that writ, application with a direction to the Government of India to make a reference of the dispute within a period of three months from the date of receipt of a copy of the order. Pursuant to the aforementioned direction, the Central Government complied with the said direction and referred the following dispute for adjudication :--
"Whether the action of the management of Mudidih Colliery of M/s. BCCL Dhanbad in dismissing Shri R.K. Prasad from service is justified? If not, to what relief is the workman entitled to."
8. Once the dispute in relation to dismissal of the workman was already adjudicated upon by the award dated 26.7.1988 and which stood confirmed by order dated 14.8.1989 passed in CWJC No. 1411 of 1989 (R) and subsequently confirmed by the Hon'ble Supreme Court of India vide SLP No. 13313 of 1989, there was absolutely no occasion for framing the same issue for adjudication though purportedly in compliance of the order dated 13.2.1992 passed in CWJC No. 448 of 1992(R). The most important aspect which needs to be repeated here at this juncture is that in the aforementioned writ application i.e. CWJC No. 448 of 1992 (R) M/s. BCCL was not even made a party and in their absence the aforementioned order was passed on 13.2.1992.
9. Upon receiving notice about the aforementioned second reference quoted above vide Notification dated 3.4.1992 (Annexure 5) and which stood registered as Reference Case No. 17 of 1992, the petitioner directly moved the Hon'ble Supreme Court of India and by order dated 29.1.1993, (Annexure 6) the said SLP was dismissed with the following observations : "Since the petitioner is the most affected party and was not heard before impugned order was passed by the High Court, it would be fair that the petitioner moves the High Court to obtain an appropriate relief. The Special Leave Petition is dismissed on this count. Should the petitioner remain aggrieved after approaching the High Court, the matter as agitated herein would be open to be agitated again by it."
10. Upon perusal of the observations of Hon'ble Supreme Court of India, it is evident that the fact that M/s. BCCL was not made a party was duly taken note of and it was observed that in that view of the matter, it would be fair that the said BCCL moves the High Court to obtain an appropriate relief. It was thereafter and pursuant to the aforementioned observations of the Hon'ble Supreme Court of India that the petitioners then filed CWJC No. 862 of 1993 (R) wherein they challenged the second reference, which, according to them, was a dispute which had already been adjudicated upon by the first Award dated 26.7.1988 as contained in Annexure 1.
11. The aforementioned writ application, namely, CWJC No. 862 of 1993(R) was allowed by judgment dated 11.3.1997 and it was held that the order of the Central Government (meaning thereby the order of second reference) could not be sustained. Accordingly that notification dated 3.4.1992 (Annexure 5) was set aside.
12. From the foregoing narration of the sequence of events it is thus apparent that while on the one hand, the Award was confirmed right up to the Hon'ble Supreme Court of India, the second reference for the same cause of action was held by a Division Bench of this Court to be not sustainable by order dated 11.3.1997 as contained in Annexure 7.
13. Even thereafter it appears that the concerned workman once again raised the dispute and by reason of the impugned notification dated 29.1.1999, the following dispute has been referred for adjudication : "Whether the action of the Management of Mudidih Colliery of M/s. BCCL in dismissing Sri R.K. Prasad, Lamp Cabin Incharge from the services of the Company w.e.f. 31.12.1985 only on the ground of unauthorized absence w.e.J. 28.8.1984 to 19.10.1984 which the Management has failed to establish the same through any documentary evidence is justified? If not, to what relief the concerned workman is entitled."
14. Upon perusal of the language of the impugned reference made on 29.1.1999, it is absolutely clear that the same dispute is being sought to be raked up ad nauseam over and over again. It would, therefore, only be just and apt to place all the three references in juxtaposition to each other because only then, it will be clear as crystal that in effect all the three references are one and the same :--
TABLE 1 2 3 1st Reference dated 7.8.1986 2nd Reference dated 3.4.1992 3rd Reference dated 29.1.1999 Ref. Case No. 279/86 Ref. Case No. 17/92 Impugned Whether the demand of Shri R.K. Prasad, Ex. Camp Lamp Incharge of Mudidih Colliery of Sijua Area of Bharat Coking Coal Ltd., who was dismissed from service from 31.12.1985 that he should be reinstated in service by the Management. is justified? If so, to what relief he is entitled.
Whether the action of the management of Mudidih Colliery of M/s. BCCL Dnanbad in dismissing Shri R.K. Prasad from service s justified? If not, to what relief is the workman entitled to.
Whether the action of the Management of Mudidih Colliery of M/s. BCCL in dismissing Sri R.K. Prasad, Lamp Cabin ncharge from the service of the Company w.e.l. 31.12.1985 only on the ground of unauthorized absence w.e.f. 28.8.1984 to 19.10.1984 which :he management has ailed to establish the same through any documentaly evidence is justified? If not, to what relief the concerned workman is entitled.
15. The issue, therefore, that lies before this Court is as to whether upon finality of the dispute right up to the Hon'ble Supreme Court of India which was the subject matter of the first reference and the second same reference having again been set aside by judgment of the Division Bench delivered on 11.3.1997 in CWJC No. 862 of 1993(R), could the respondents be said to have any authority or jurisdiction to once again, for the 3rd time, refer precisely the same dispute again for reference when, it was already adjudicated upon? The answer to this is an emphatic 'No' and it is held, that the third reference dated 29.1.1999 was totally hit by the principles of res judicata and/or constructive res judicata and/or provisions analogous thereto and, therefore, this reference was totally misconceived and could not have been made at all.
16. Mr. Mihir Kumar Jha, learned counsel for respondent No. 3 argued and submitted that the order passed in CWJC No. 448 of 1992 (R) i.e. the order 13.2.1992 was not set aside by the Hon'ble Supreme Court of India and, therefore, it attained finality and, therefore, even as on date the mandate of that order still remains to be executed and it has to be given effect to. Consequently, according to him, the impugned order dated 29.1.1999 is, in effect, a valid compliance of the aforementioned order dated 13.2.1992, and, therefore, it should not be interfered with.
17. I am afraid that the submissions of Mr. Jha are totally misconceived. The order dated 13.2.1992 was passed ex parte and behind the back of the petitioner and in any event the Government did make a reference pursuant to that order and that was the second reference dated 3.4.1992. That reference was registered as Reference Case No. 17 of 1992 and the petitioners, therefore, rightly moved before the Hon'ble Supreme Court of India where the said Hon'ble Court gave liberty to the petitioners to move the High Court. Accordingly, M/s. BCCL filed CWJC No. 862 of 1993(R) and by judgment dated 11.3.1993 (Annexure 7) the Division Bench set aside and quashed the second reference. Therefore, the argument of Mr. Jha to the effect that the order dated 13.2.1992 still needs to be complied with, is hopelessly misconceived because it was complied with by the Government by making the second reference, which stood subsequently quashed by the Division Bench. It is, therefore, a closed chapter for the concerned workman.
18. Mr. Jha then argued that there cannot be res judicata in an industrial dispute and that on account of fresh facts; the Government of India was not denuded of its power to act in terms of Section 10 of the Act. He further states that the fact that there were fresh materials, was apparent from the fact that even prior to making the impugned reference dated 29.1.1999, a full fledged conciliatory proceedings were held on various dates and a large number of documents proved that on the dates on which the concerned workman was supposed to have been absent without any authority, he had valid explanation to offer. He further submits that having submitted themselves to a conciliatory process, they cannot subsequently turn around and challenge the order of reference. The aforementioned submissions of Mr. Jha are again fit to be rejected because once the matter stood concluded, the same cannot be allowed to be agitated and reagitated over and over again and, therefore, even if the petitioners submitted themselves to the conciliatory proceedings, the law of estoppel will not operate against them because there is no estoppel against an illegality and/or an irregular act. The very fact that the matter stood concluded and had attained finality right up to the Hon'ble Supreme Court of India, and later on, the same matter which was raised through a second round of litigation having been quashed by a Division Bench, it cannot be said that the third round of litigation/dispute/conciliatory proceedings were maintainable or regular in nature. In fact they were all totally irregular and not maintainable at all. In that view of the matter, the plea of estoppel cannot come to the rescue of the respondents. To that extent, therefore, the judgment cited by Mr. Jha in the case of the Mumbai Kamgar Sabha, Bombay v. Abdulbhai Faizullabhai and Ors., AIR 1976 SC 1455, is not applicable and cannot come to the rescue of the respondents because in this case, the same matter has been subjected to judicial scrutiny right up to the Hon'ble Supreme Court of India as also before this Court in the manner indicated above and, therefore, it cannot be allowed to be reagitated and reopened all over again. In that view of the matter, the other judgment cited by Mr. Jha in the case of River Steam. Navigation Company Limited v. The Second Industrial Tribunal, West Bengal and Ors., 1990 Lab IC 675, of the Calcutta High Court to the effect that Writ Court should be slow in interfering with a reference on a preliminary point is also held to be not applicable in the facts of the case because, this is not a case, where, for the first time this dispute lies before us for scrutiny. In fact, it was scrutinized on earlier occasions and the dispute was finally concluded by the publication of the award.
19. Mr. Jha then argued and attacked the Award itself i.e. Annexure 1 and submitted that the same cannot be said to have attained finality because that Award was obtained by playing fraud upon the Court inasmuch as neither the Attendance Register was produced nor were the hospital records produced nor was a Form "G" Register brought on record by the Management. The aforementioned argument must also be rejected and such a plea must be repelled as being only a plea of a person who would not hesitate to even clutch the last straw. When confronted with a specific question as to whether this point was raised before the Labour Court or before the Writ Court in CWJC No. 1411 of 1989 (R), all that Mr. Jha could reply was that the management is the custodian of documents and, therefore, the workman could not raise these points earlier. The Management may be a custodian of documents, but when a workman is pleading and/or is giving a valid explanation in relation to his absence, then he is expected to have knowledge about entries made in the aforementioned documents and if he has the knowledge, he is also expected to raise these points before the Court where a lis is being scrutinised for purposes of adjudication. That having not been done, such a plea cannot be accepted and it is accordingly rejected. To crown it all, even Hon'ble the Supreme Court of India, by Annexure 3. dismissed the SLP filed by the concerned workman on 5.12.1989, thereby confirming the judgment passed in CWJC No. 1411 of 1989 (R) which, in turn, had held that the Court did not find any reason to interfere with the findings of the Tribunal. The finding of the Tribunal was that :--
"The demand of the concerned workman Shri R.K. Prasad. Ex. Cap Lamp Incharge of Mudidih Colliery of Sijua Area of M/s. BCCL who was dismissed from service with effect from 31.12.1985 that he should be reinstated in service by the Management is not justified and accordingly the concerned workman is entitled to no relief."
20. For the foregoing reasons, therefore, this Court holds that the third reference dated 29.1.1999 is not maintainable as it amounts to reopening a matter which was already concluded by Award of the Tribunal which attained finality by reason of passing of a judgment of the Writ Court and subsequent dismissal of the SLP filed by the workman against the said judgment of the Writ Court. Consequently, the writ petition must succeed and it is, accordingly, allowed to do so.
21. As a result of the aforementioned findings, the notification dated 29.1.1999 passed by respondent No. 2 is quashed and set aside.
22. The writ application is allowed.
However, there shall be no order to as costs.