Madhya Pradesh High Court
Municipal Corporation, Katni vs Vinod Kumar Badgaiya on 16 January, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 16th OF JANUARY, 2024
MISC. PETITION No. 5822 of 2022
BETWEEN:-
MUNICIPAL CORPORATION, KATNI THROUGH
ITS COMMISSIONER MUNICIPAL CORPORATION
DISTRICT- KATNI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DR. ANIL KUMAR PARE - ADVOCATE )
AND
1. VINOD KUMAR BADGAIYA S/O SHRI
SARMAN LAL NEAR GOUSHALA NADI
PAAR KATNI (MADHYA PRADESH)
2. PRESIDING OFFICER LABOUR COURT
JABALPUR (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY DEPARTMENT OF
URBAN ADMINISTRATION AND
DEVELOPMENT MANTRALAYA VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI D. K. KHARE - ADVOCATE FOR RESPONDENT NO.1 /
CAVEATOR AND SHRI GAJENDRA PARASHAR - PANEL LAWYER FOR
STATE)
This petition coming on for admission this day, the court passed
the following:
ORDER
2
1. This petition under Article 227 of the Constitution of India has been filed against award dated 21.7.2022 passed by Labour Court, Jabalpur in case no. 36/2016/IDR, by which, the Labour Court has directed the petitioner to reinstate respondent no.1 without back wages but a compensation of Rs.20,000/- has been awarded.
2. It is submitted by counsel for the petitioner that in the year 1999 the petitioner had terminated services of 393 employees in the light of the law laid down by the Supreme Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and others reported in (2006) 4 SCC 1. Accordingly, respondent no.1 along with other similarly situated employees approached this Court by filing W.P.No.2010/1999. The said writ petition was dismissed by a Coordinate Bench of this Court by order dated 29.7.1999. Being aggrieved by the said order, respondent no.1 and other similarly situated employees preferred multiple Letter Patent Appeals. The appeal filed by respondent no.1 was registered as LPA No.294/99. All LPAs including that of filed by respondent no.1 were disposed of by order dated 30.10.2002 with specific findings that the Commissioner, Municipal Corporation, can consider the matter whether the appointments have been done in accordance with Rules or not and necessary factors can be looked into and the principle of natural justice be followed and accordingly, the order passed by learned Single Judge was set-aside and the Commissioner, Municipal Corporation was directed to issue notice to the employees whose services have been terminated within two months. In addition to the issuance of the show cause notice, notices of show cause be served on the learned counsel for the appellants. The 3 learned counsel appearing for the appellants also conceded to that it would amount to issue of notice to the appellants. The employees were directed to submit their representations to the said authority within a period of eight weeks therefrom and thereafter, the Commissioner shall pass a cogent and reasoned order. These directions were made with a specific observation that no right shall accrue in favour of the petitioners to lodge their claim that they should be taken back in the services and allowed to work. It was also observed that petitioners / employees were basically daily wages workers and the Commissioner was directed to pass appropriate order keeping in view the circular and executive instructions and any such document which govern the field. He shall keep in mind that he has to play a fair role and shall function independently without being influenced. The Commissioner shall also bear in mind that in a welfare State back-door entry is not appreciated as it corrodes the base of public interest.
3. It is submitted that thereafter, the petitioner did not file any SLP before the Supreme Court and accordingly, the order passed by the Division Bench in LPA No.294/99 became final. It appears that thereafter respondent no.1 approached Assistant Labour Commissioner who on failure of reconciliation proceedings, referred the matter to the Labour Court. The Labour Court by the impugned award has allowed the statement of claim filed by respondent no.1 only on the ground of discrimination and violation of Section 25-F of the Industrial Disputes Act and direction was given to reinstate respondent no.1. However, as respondent no.1 had approached the ALC / Labour Court belatedly, 4 therefore, the back wages were not awarded but a compensation of Rs.20,000/- was awarded.
4. Challenging the order passed by the Labour Court, it is submitted by Shri Pare that in fact the award passed by the Labour Court is barred by doctrine of res judicata. The matter was already decided by the High Court and if respondent no.1 was not satisfied with the direction given by the High Court then either he should have approached the Supreme Court or he should have filed contempt petition for not complying the direction given by the Writ Appellate Court. However, reference before the Labour Court was not maintainable.
5. It is further submitted that the law laid down by the Supreme Court in the case of Uma Devi (supra) is equally applicable to the Labour Courts and the Labour Courts cannot ignore the fact as to whether the employees were illegally appointed or not. To buttress his contentions, counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of UP Power Corporation Ltd. Vs. Bijli Mazdoor Sangh, reported in (2007) 5 SCC 756 and Hari Nandan Prasad Vs. Food Corporation of India, reported in (2014) 7 SCC
190.
6. Per contra, the petition is vehemently opposed by counsel for respondent no.1. It is submitted that since the matter has been decided by the Labour Court, therefore, the principle of res judicata would not apply. It is further submitted that question of violation of Section 25-F of the ID Act was not raised before the High Court although it was available to respondent no.1. It is further submitted that two similarly situated employees who were appointed as daily wagers subsequent to 5 respondent no.1 had filed a contempt petition before this Court which was registered as Conc. No.442/2004 and was finally disposed of by order dated 2.7.2004.
7. By referring to this order, it is submitted by counsel for the respondent that there was no direction by the Division Bench of this Court to the respondents to give appointment to Sudhir Kumar Khare and Pramod Kumar Khare who had filed contempt petition but in spite of that, both the persons who were junior to respondent no.1 as daily wagers were given reinstatement and thus, respondent no.1 is also entitled for the same treatment being senior to Sudhir Kumar Khare and Pramod Kumar Khare. It is submitted that any action which is by-product of discrimination is bad in law. To buttress his contentions, counsel for respondent no.1 has relied upon the judgment passed by the Supreme Court in the case of Jeetubha Khansangji Jadeja vs. Kutchh District Panchayat, decided on 23.9.2022 in Civil Appeal No. 6890/2022 and the case decided by a Coordinate Bench of this Court in the case of Sr. Depot Manager vs. Ku. Vidyawati Ramswaroop Verma, on 11.7.2023 in W.P.No.13725/2014.
8. Heard counsel for the parties.
9. First question for consideration is as to whether the principle of res judicata applies to the Labour Court or not?
10. Section 11 of CPC reads as under :-
"Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly an substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the 6 same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation I.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.--For the purpose of this section, the competence of the Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.
Explanation III.--The matter above referred to must in a former suit have been alleged by one party and, either denied or admitted, expressly or impliedly by the other. Explanation IV.--Any matter which might or ought to have been made ground of defence or attack in such former suit, shall be deemed to have been a matter directly or subsequently in issue in such suit. Explanation V.--Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
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.
Explanation VII.--The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for execution of the decree, question arising 7 in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.--An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
11. Respondent no.1 by filing a writ petition had approached this Court against termination of his service in the light of the judgment by the Supreme Court in the case of Uma Devi (supra). Thus, it is clear that basic cause of action for approaching the High Court in W.P.No.2010/99 was against termination of his service. The writ petition was dismissed by the Coordinate Bench of this Court. However, the order passed by the Writ Court was set-aside by the Division Bench with a direction to the Commissioner to issue notice to the employees. It is not known as to whether any further action was taken by the Commissioner, Municipal Corporation, Katni or not, but one thing is clear that except two persons i.e. Sudhir Kumar Khare and Pramod Kumar Khare, none else approached the High Court by filing contempt petition.
12. It is the case of respondent no.1 himself that on the date when writ petition was filed before this Court, ground of violation of Section 25- F of the ID Act was available with respondent no.1. It is clear from explanation IV of Section 11 of CPC that any matter (ground of defence or attack) which might or ought to have been made in such 8 former suit, it shall be deemed to have been as substantially or directly in issue in such suit. Thus, it is clear that whatever ground was available to respondent no.1 at the time of filing of writ petition before this Court, cannot be re-agitated by him before another forum i.e. Labour Court in the subsequent proceedings.
13. The ALC had made the following reference :-
Þvuqlwph ^^D;k Jh fouksn dqekj cMxS;k firk Jh ljeu yky dks lsok ls i`Fkd fd;s tkus ds iwoZ vukosnd }kjk vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 25&,Q dk ikyu fd;k x;k Fkk ,oa D;k vkosnd ds lkFk esa gh lsok ls i`Fkd fd;s x;s vU; deZpkjh Jh lq/khj dqekj [kjs ,oa Jh çeksn dqekj [kjs dks vukosnd }kjk iqu% lsok esa ysdj mUgsa inkSUur fd;k x;k gS\ ;fn gkWa rks vkosnd dks lsok i`Fkdhdj.k mijkUr iqu% lsok esa vukosnd }kjk ugha fy;k tkuk voS/k ,oa vuqfpr gS vkSj D;k vkosnd dk foyac ls vkosnu çLrqr fd;k tkuk ldkj.k gS\ ;fn gka rks vkosnd dk fdl lgk;rk ds ik= gS ,oa bl lac/a k esa fu;kstd dks D;k funsZ'k fn, tkus pkfg,ß
14. The documents pertaining to the orders passed by the Writ Court as well as the Appellate Court and in the contempt petition were before the Labour Court. The Labour Court was very well aware of the first round of litigation between the same parties. Therefore, it was always expected from the Labour Court to consider as to whether proceedings are barred by principle of res-judicata or not. Unfortunately, that point has not been touched by the Labour Court.
15. Furthermore, in the light of the judgment passed by the Supreme Court in the case of Uma Devi (supra), the State Governments were directed to formulate a One Time Scheme in respect of irregularly appointed employees who had put in 10 years of continuous service and according to the judgment of the Supreme Court in the case of State of 9 Karnataka v. M.L. Kesari, (2010) 9 SCC 247, the cutoff date for ascertainment of the said aspect was 10.4.2006. It was also held in Uma Devi (supra) that illegally appointed employees have no right to continue in service.
16. The Supreme Court in the case of Bijli Mazdoor Sangh (Supra) has held that law laid down by the Supreme Court in Uma Devi (Supra) is equally applicable to the Labour Court and the Tribunal. Therefore, the Labour Court was also required to consider as to whether initial appointment of the respondent was illegal or irregular. Without adhering to the said aspect, the Labour Court directly jumped to a conclusion that since respondent no.1 is victim of discrimination by not offering the appointment which was done in the case of Sudhir Kumar Khare and Pramod Kumar Khare, therefore, termination of respondent no.1 is bad in law.
17. Accordingly, counsel for respondent no.1 was directed to address this Court on the question of doctrine of negative equality, because it was being repeatedly argued by counsel for respondent no.1 that since the petitioner was given discriminatory treatment, therefore, respondent no.1 is also entitled for the same treatment which was given to Sudhir Kumar Khare for the reason not only respondent no.1 was senior to Sudhir Kumar Khare and Pramod Kumar Khare but he was also similarly situated person. However, it was fairly conceded by counsel for respondent no.1 that he does not know the meaning of doctrine of negative equality.
18. It is well established principle of law that negative quality has no role to play under Articles 14 and 16 of the Constitution of India.
1019. The Supreme Court in the case of Union of India and Another v. International Trading Co. & Another, reported in (2003) 5 SCC 437 has held as under :
"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality."11
20. The Supreme Court in the case of Directorate of Film Festivals and Others v. Gaurav Ashwin Jain & Others reported in (2007) 4 SCC 737 has held as under :
"22. When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. The principle has been stated by this Court in Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] thus: (SCC pp. 750-51, para 8) "Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such 12 illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law--indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law--but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's 13 case, which other person is not before the case nor is his case. In our considered opinion, such a course--barring exceptional situations--would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well- accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles."
21. The Supreme Court in the case of Haryana State Electricity Board and Another v. Gulshan Lal & Others, reported in, (2009) 12 SCC 231 has held as under :
"32. The appellant is State within the meaning of Article 12 of the Constitution of India. For holding a public office, an employee must possess the requisite prescribed qualification, in absence whereof the additional reliefs could not have been granted to them relying on or on the basis of the judgment passed in the earlier cases.
33. Conditions of service of the employees of the appellants are governed by the statutory rules. Violation thereof is impermissible in law. Whereas the appellants are bound by the doctrine of equality as envisaged under Article 14 of the Constitution of India, it is also well settled that unequals cannot be treated as equals. Herein, equality doctrine has been invoked only on the basis of relief granted in the case of Anil Kapoor.
34. In Anil Kapoor's case, a writ petition was also filed for the purpose of grant of designation. The same has rightly or wrongly been allowed. That 14 would not mean that equality can be claimed on the basis thereof which would lead to a wholly anomalous situation. Decree granted by a competent court of law is no doubt binding on the employer. But, when in a subsequent litigation the absurd result emanating from the cascading effect thereof becomes apparent before another court and it is found that the said judgment is illegal, it is well settled, that by application of Article 14 of the Constitution of India alone, similar relief should not be granted.
35. Equality clause carries with it a positive effect. It signifies treating persons equally who are situated similarly. Those who had been occupying the position of Foreman Grade I and/or Foreman Grade II and other employees who were far below them either for the purpose of seniority or otherwise could not have been treated equally. The cascading effect thereof would be that for all intent and purport those who are in the joint seniority list being above Anil Kapoor and others in the seniority list would derive the same benefit irrespective of the fact as to whether they are qualified to hold the post of Foreman Grade I and/or otherwise gained sufficient experience therefor for promotion to that post."
22. The Supreme Court in the case of Shanti Sports Club & Another v. Union of India & Others, reported in (2009) 15 SCC 705, has held as under :
"71. Article 14 of the Constitution declares that:
"14. Equality before law.--The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."
The concept of equality enshrined in that article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, 15 but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq yd plot in Sector 31-A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the estate officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and the Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on 18-3-1991. Thereafter, the respondent again approached the estate officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging 16 forfeiture amount of 5%. His request was rejected by the estate officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under: (Jagjit Singh case [(1995) 1 SCC 745] , SCC pp. 750-51, para 8) "8. ... We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. (emphasis in original) The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose.
Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it 17 can be done according to law--indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law--but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. (emphasis supplied) By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case (sic court) nor is his case. In our considered opinion, such a course--barring exceptional situations--would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well- accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant 18 legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world."
23. The Supreme Court in the case of Basawaraj and Another v. Special Land Acquisition Officer, reported in (2013) 14 SCC 81 has held as under :
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745 : AIR 1995 SC 705], Anand Buttons Ltd.v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 19 565] ,K.K. Bhalla v. State of M.P.[(2006) 3 SCC 581 : AIR 2006 SC 898] and Fuljit Kaur v. State of Punjab[(2010) 11 SCC 455 : AIR 2010 SC 1937].)"
24. Thus, a person is required to establish his right and he cannot say that since the respondents have passed an illegal order in respect of somebody, then the respondents should be directed to pass the similar illegal order in this case also. Two incorrect orders cannot make the one order correct.
25. Counsel for respondent no. 1 could not point out as to whether his initial appointment was illegal or irregular. In absence of such finding, it has to be presumed that initial appointment of respondent no.1 was illegal. Therefore, the Labour Court could not have passed the order by ignoring the order passed in Uma Devi (supra).
26. At this stage, it is submitted by counsel for respondent no. 1 that respondent was a worker and he was not well aware of niceties of law and in fact, he should have approached the Labour Court at the first instance always but only on assurance given by the Advocate, he had filed writ petition. This submissions made by counsel for respondent no. 1 cannot be accepted. Once respondent no.1 has approached the Writ Court then he has to face benefits / consequences of the same.
27. Be that whatever it may be.
28. The petitioner has taken this Court through the relief clause of statement of claim of respondent no.1. In the relief clause, the respondent no.1 had not prayed for reinstatement. The respondent no.1 had prayed for quashment of termination on the ground of violation of provisions of Section 25-F of the ID Act. If the termination is set-aside 20 then reinstatement will be the consequential relief and unless and until consequential relief is sought, the declaration simplicitor for setting aside the termination was not maintainable in the light of Section 34 of the Specific Relief Act.
29. Since the reference made by ALC on the application made by respondent no. 1 was barred by principle of res judicata and the award cannot be given stamp of approval in the light of the fact that principle of discrimination or giving equal treatment is not applicable on the basis of doctrine of negative equality, this Court is of the considered opinion that Labour Court, Jabalpur committed a material illegality by passing the impugned award dated 21.7.2022 in case no.36/2016/IDR.
30. It is accordingly hereby set-aside. The petition succeeds and is hereby allowed.
(G.S. AHLUWALIA) JUDGE JP JITENDRA KUMAR Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=PRINCIPAL BENCH INDORE, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e0b76f6fc652f893c6324a2f64 a5a, postalCode=482001, st=Madhya Pradesh, PAROUHA serialNumber=627378D3EE51220F5E81130EECF5ABBEC55EBB6B78033E5FF1040 2B19143AD99, cn=JITENDRA KUMAR PAROUHA Date: 2024.01.19 05:01:02 -08'00'