Rajasthan High Court - Jaipur
Chief Manager vs Shri Ramavtar Sharma Son Of Shri ... on 12 December, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 20683/2019
Chief Manager, Rajasthan State Road Transport Corporation,
Jaipur (East) Depot
----Petitioner
Versus
Shri Ramavtar Sharma Son Of Shri Panchuram, Driver, Resident
Of Village Narrotampura, Post Dehlalal, Tehsil Chaksu, District
Jaipur.
----Respondent
For Petitioner(s) : Mr. RM Bairwa, Adv.
For Respondent(s) :
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Order
12/12/2019
1. The petitioner-Corporation has challenged the order dated 06.09.2019 passed by the Industrial Tribunal on an application moved under Section 33(2)(b) of the Industrial Disputes Act, 1947 (hereinafter to be referred as the 'Act of 1947') whereby the Tribunal has refused to grant approval to the order of dismissal dated 20.01.1993.
2. This is a second round of litigation initiated by the petitioner-Corporation. At the first stage, after the Tribunal had disapproved the order, writ petition was preferred before this Court as S.B.C.W.P.No.14829/2009 and the matter was again remanded back to the Tribunal to consider the issues with regard to the approval and examined the matters on merits within four (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) (2 of 7) [CW-20683/2019] corners of the jurisdiction under Section 32(2)(b) of the Act of 1947.
3. Learned Counsel for the petitioner-Corporation submits that the procedure was followed for moving application under Section 33(2)(b) of the Act of 1947. Enquiry was conducted against the workman and in the enquiry, the Enquiry Officer had held the workman guilty of the charges and, therefore, order of dismissal was passed rightly on 20.01.1993 and the same ought to have been approved by the concerned Industrial Tribunal.
Learned Counsel has also relied on judgment passed by the coordinate Bench in the case of Chief Manager RSRTC & Ors.
Vs. Kamlesh Sharma & Anr.- S.B.Civil Writ Petition No.10283/2011 decided on 07.09.2012 wherein the Court laid down the scope of the Industrial Tribunal in issue relating to application under Section 33(2)(b) of the Act of 1947.
4. Learned Counsel for the respondent submit that the petitioner has not been able to prove the charges as alleged against him.
5. I have considered the submissions and gone through the order dated 06.09.2019 passed by the Industrial Tribunal. The Tribunal has given an opportunity to the petitioner to even prove the charges as before it after it found that the enquiry was not conducted properly. The petitioner produced one witness i.e. the Inspector who had gone to conduct the inspection of the bus wherein the respondent was working as a Conductor. The statement of the said witness as deposed before the Tribunal mentions that all the passengers got down from the bus and (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) (3 of 7) [CW-20683/2019] started misbehaved with him. The passenger did not show their tickets to the Inspector and he even lodged an FIR in the police Station. The Tribunal has found that so far as the respondent-
workman is concerned, he has given details of the distribution of the 52 tickets to 52 passengers who were traveling in the bus. It was asserted that all the passengers were having tickets which had been given by him and the Inspector had created chaos which resulted an atmosphere where all the passengers got down.
6. Learned Counsel for the petitioner submits that if the passengers have not shown the tickets to the Inspector, it is to be presumed that they were traveling without ticket. However, the Industrial Tribunal has found it otherwise and had reached to the conclusion that the charges are prima facie not found to be established as against the workman. In Chief Manager RSRTC, Jaipur & Ors. Vs. Kamlesh Sharma & Anr. (supra), the coordinate Bench while discussing the law relating to 33(2)(b) of the Act of 1947 has held in para 12 as under:-
"12. In the circumstances, I leave it to the parties to agitate all their claims arising out of their disputes, which have already been referred to the Labour Court and the petitioners shall be at liberty to attack the orders in reference pending before the Labour Court on any ground available to them under the Law including the grounds of victimisation, discrimination, unfair labour practice, vires of the inquiry and the inquiry being against the principles of natural, which shall be decided by the Labour Court in accordance with law.
The perusal of para No.11 reveals that the scope of approval application was kept limited to prima facie conclusion, which is in regard to the question of sufficiency of proof of misconduct. In para No.12, no doubt, it is held that all the issues, narrated therein, can be viewed in a reference case but it is only an observation and not a ratio propounded after discussing the issue, thus remains obiter.
So far as the judgement of Delhi High Court is concerned, therein again the difference of scope under (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) (4 of 7) [CW-20683/2019] Section 10 and Section 33(2)(b) of the Act of 1947 has been discussed while judging all the issues but issue of fairness of enquiry was considered without taking note that jurisdiction is common for that. The Division Bench of Delhi High Court was more concerned to issue of prima facie case to be made out for approval application. The comparative scope of two proceedings were not dealt with the required length. This is moreso when, the scope of labour Court/Tribunal while hearing the approval application and thereupon, a reference case has been dealt with. It is, no doubt true that acceptance of an approval application does not operate res- judicata in subsequent reference case but it would on the issues which are not common, however, if an issue is common and with the same jurisdiction then it will operate as res judicata. The principle of res-judicata as explained by the Hon'ble Apex Court in the case of Pondicherry Khadi and Village Industries Board Vs. P. Kulothangan and Anr. reported in (2004) 1 SCC 68 is that if an issue has been decided by the Court between the same parties and on same material, then successive proceedings between the same parties and on the same issue will operate as res-judicata. Para Nos. 10 and 11 of the judgement in the case of Pondicherry Khadi & Village Industries Board (supra) is quoted hereunder for ready reference:
"10.In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable Workmen v. Straw Board Mfg. Co.:(1974) ILLJ499SC to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code, are applicable including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain: [1977]3SCR428 it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as resjudicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held: "....it may be that the same set of facts may give rise to two or more causes of action. If in such 3 case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process".
11. The principle of resjudicata operates on the Court, it is the Courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) (5 of 7) [CW-20683/2019] court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on the merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen of Cochin Port Trust v. Board of Trustees of the Cochim Port Trust & Anr. :
(1978)IILLJ161SC ; Smt Pujari Bai v. Madan Gopal (dead) L.Rs.: [1989] 3SCR383 the "lesser relief" of reinstatement which was the subject matter of the industrial dispute had already been claimed by the respondent in the writ petition.
This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to re-agitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings."
In view of the judgement of Hon'ble Apex Court, so far as question of fairness of enquiry is concerned, once it is decided in approval application, will operate as res- judicata in subsequent proceedings as it is between the same parties and based on same material, thus in successive proceedings, the issue cannot be reopened. The Division Bench of Delhi High Court did not apply principle of res-judicata due to difference of jurisdiction in approval application and reference case. In approval, prima facie case is seen apart from as to whether three conditions for making approval application was made out or not and fairness of inquiry. It is without taking note that where scope and jurisdiction of the Court is not different in two proceedings, the successive proceedings will operate as res-judicata. It is to be understood that principles of res-judicata is to stop judicial indiscipline. Once issue is decided between the same parties by a competent Court then should not be allowed to reopened in successive proceedings based on same material, otherwise there would be judicial indiscipline. The same analogy applies on the issue raised herein. The Division Bench of Delhi High Court could not bifurcate jurisdiction of the Court hearing approval application and subsequently the reference case by specifically indicating as to how the jurisdiction is exercised in two proceedings and what is the scope. If the judgement of Division Bench is accepted then it goes against the principles of res-judicata as explained by the Hon'ble Apex Court in the judgement referred to above. The grant of approval application can be subject matter of a challenge by writ petition and therein, grant of approval (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) (6 of 7) [CW-20683/2019] application is upheld by the High Court then how the issues finally determined therein, can be allowed to reopen by subordinate Court between the same parties based on same material.
Further reason to support the view is that while hearing the approval application, the enquiry is found to be unfair then employer is at liberty to lead evidence to prove misconduct and if it is permitted and evidence is led and charge is held proved, can the issue concluded in favour of the employee holding enquiry to be unfair can be held to be fair in successive proceedings. If it is allowed then, it would virtually nullify the evidence led by the parties in the approval application to prove the charges. Therefore, once the enquiry is held to be unfair in the approval application and parties are allowed to lead evidence then material produced alone can be considered. In the successive proceedings on reference of dispute, the enquiry cannot be held to be fair so as to nullify the evidence and material produced in evidence while adjudicating approval application. The issue is examined by giving both the situations and answer is common that so far as the issue of fairness of enquiry is concerned, once it is decided in the approval application either holding it to be fair or to be unfair, the said issue cannot be re-examined again in successive proceedings on reference of dispute between the same parties and on the same material.
Accordingly, it is held that issue of fairness of enquiry, if decided in the approval application, then issue is not open for the labour Court/Tribunal to reopen or re- examine it in successive proceedings on reference under Section 10 of the Act of 1947."
8. Thus from above, it is apparent that once the Tribunal comes to the conclusion that prima facie case for dismissal based on legal evidence adduced before the Tribunal is not made out, the concerned application under Section 33(2)(b) of the Act of 1947 cannot be proved. In the present case, the petitioner-Corporation has not been able to prove that the workman had allowed passengers without ticket.
9. Keeping in view the principles as above, I do not find any reason to interfere with the order passed by the Industrial (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) (7 of 7) [CW-20683/2019] Tribunal dated 16.02.2016, the writ petition is found to be devoid of merit and the same is accordingly dismissed.
(SANJEEV PRAKASH SHARMA),J N.Gandhi/286 (D.B. SAW/51/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:48:02 AM) Powered by TCPDF (www.tcpdf.org)