Punjab-Haryana High Court
The Punjab State Co-Operative Bank Ltd. vs Presiding Officer, Labour Court And ... on 26 February, 1992
Equivalent citations: (1993)IILLJ260P&H, (1993)103PLR310
JUDGMENT A.L. Bahri, J.
1. The short question for consideration is as to whether the order of the High Court passed under Article 226 of the Constitution dismissing the writ petition, though in limine but on merits giving reasons, would operate as res judicata in the subsequent proceedings taken under Section 10 of the Industrial Disputes Act (for short 'the Act') before the Labour Court.
2. Relevant facts for decision of the aforesaid question only needs to be noticed. Mrs. Usha Devi Sharma, respondent No. 2, was removed from service vide order Annexure P.8, dated September 20, 1985. She was employed as a Clerk by the Management of the Punjab State Co-operative Bank, Limited, the petitioner; that retrenchment compensation and one month's wages in lieu of notice were ordered to be paid vide this order. This was challenged by Smt. Usha Devi Shanna in CWP No. 4807 of 1985 and the Division Bench passed the following order on January 24, 1986, after notice to the opposite party:-
"The petitioner was working as a probationer Clerk with the respondent, her services were terminated vide order dated September 20, 1985 Annexure P. 5. She has challenged the said order though this writ petition.
The contention of the learned counsel for the petitioner is that the services of the petitioner were terminated by way of punishment. We regret our inability to accept the contention. There is nothing on record that the impugned order has been passed by way of punishment. It also does not cast any stigma on the petitioner. It is well settled that during probation, the services of an employee can be terminated by the employer by passing an innocuous order. Consequently, we do not find any merit in writ petition and dismiss the same in limine."
3. Feeling not satisfied, Smt. Usha Devi Shanna raised an Industrial dispute challenging the same order terminating her services. The dispute was referred to the Labour Court. Vide Award dated April 4, 1990 (Copy Annexure P. 1), the order terminating services of Smt. Usha Devi Shanna was held to be illegal. She was directed to be reinstated with continuity of service and she was to get 60% of back-wages. Annexure P.1-Award of the Labour Court is under challenge in this writ petition.
4. On the question of binding nature of the order of the High Court passed in the writ petition the Labour Court in para 10 of the judgment observed as under:-
"Before parting with this award, I would like to make brief mention of the argument raised by the counsel for the management that the present reference is barred under the principle of res judicata in the light of orders Ex. M1. passed by the Hon'ble High Court on January 24, 1986. The workman is devoid on merit because there is no plea in the written statement and secondly that the writ was dismissed in limine. Thirdly, the High Court did not think proper to invoke the provisions of Article 226 of the Constitution as the matter required thorough scrutiny which could be done only by leading evidence by both the parties. Otherwise also the dispute was an industrial issue which could be raised by the workman by separate proceedings which he did"
5. In order to avoid the order of the High Court passed in the writ petition, as reproduced above, the Labour Court observed that there was no plea in the written statement taken regarding order of the High Court operating res judicata. It was also observed that the High Court did not think proper to invoke the provisions of the Article 226 of the Constitution as the matter required thorough scrutiny which could be done only by leading evidence by both the parties. The aforesaid observations are against the record. Copy of the written statement filed by the petitioner (here) before the Labour Court is Annexure P.3. A portion of preliminary objection No. 2 is reproduced to highlight specifically the point that was raised therein:-
"The reference is not maintainable as Smt. Usha Devi filed a Civil Writ Petition No. 4807 of 1985 titled as Usha Devi v. The Punjab State Cooperative Bank Ltd., against the orders of termination dated September 20, 1985 which are impugned in this very reference of dispute. Therefore, once the Hon'ble High Court has upheld the orders of termination, the reference of dispute is not competent and the same is liable to be dismissed on this score alone"
The other observation is also not supported from the record as order of the High Court has been reproduced in extenso above. No observations were made by the High Court that resort to the provisions of Article 226 of the Constitution could not be had as the matter required thorough scrutiny which could be done only by leading evidence by both the parties. If such an opinion was to be expressed, the High Court would have left Smt. Usha Devi Sharma, the then writ- petitioner, to approach the Labour Court. However, the thing is otherwise. The High Court considered the writ petition on merits and adjudicated upon the arguments addressed.
6. The contention of counsel for Smt. Usha Devi Sharma that the order terminating services was passed by way of punishment, was not accepted. Rather it was observed, "there is nothing on the record that the impugned order has been passed by way of punishment". Furthermore, it was observed that the impugned order was passed during the period of probation and it did not cast any stigma. The services of an employee could be terminated by the employer by passing an innocuous order. While holding as above the writ petition was dismissed in limine.
7. The Labour Court in the impugned Award-Annexure P.1 further observed that the writ petition was dismissed in limine and otherwise also the dispute was an industrial issue which could be raised by the workman by separate proceedings which she did i.e. by getting the dispute referred to the Labour Court for adjudication under Section 10 of the Act. If the High Court had simply dismissed the writ petition in limine without giving any reasons, it could be argued that the order was not passed on merits and the workman could have approached the Labour Court, even if no such direction was given by the High Court. There is no dispute that such a matter relating to adjudication of dispute of termination of services of a workman could be referred to the Labour Court under Section 10 of the Act. However, when different remedies were available and the workman chose to avail the remedy of the writ petition under Article 226 of the Constitution and failed on merits, she was debarred from approaching the Labour Court again on the same cause of action and for the same relief. The principle of res judicata as enunciated in Section 11 of the Code of Civil Procedure, would be applicable. The order passed by the High Court dismissing the writ petition while dealing with the merits of the case giving reasons thus could not be ignored by the Labour Court, especially on the grounds as set out in the order of the Labour Court, which is impugned.
8. In order to see as to whether Smt. Usha Devi had actually challenged the order terminating her services in the writ petition or she had merely claimed regularisation of services, counsel for Smt. Usha Devi has produced copy of the writ petition. A perusal of the same shows that the same was filed after her services had been terminated and the order of termination was also challenged on different grounds. The contention of the counsel for the petitioner that in the writ petition the only relief sought was regularisation of the services is not correct. Rather a specific prayer was made in the writ petition in the nature of certiorari for quashing order dated September 20, 1985, copy of which was produced in the writ petition as Annexure P.5.
9. Since the order terminating services of the petitioner was held to be legal by the High Court, the same could not be challenged before the Labour Court. It is not considered necessary to refer to other findings on merits given by the Labour Court holding the order of the termination to be bad. The Labour Court was debarred to entertain the reference and its order cannot be sustained.
10. For the reasons recorded above this writ petition is allowed. The order of the Labour Court dated April 4, 1990-Annexure P.1 is quashed. However, there will be no order as to costs.