Punjab-Haryana High Court
Sachin Jain vs Vaish College Of Engineering Rohtak And ... on 22 February, 2023
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(228) LPA-1554-2018 (O&M) along with
connected cases bearing LPA-1580,
1581, 1582, 1585, 1593, 1594, 1667 &
1726-2018 (O&M)
Decided on : 23.02.2023
Sachin Jain ......Appellant(s)
Versus
Vaish College of Engineering Rohtak & another ......Respondent(s)
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MS.JUSTICE HARPREET KAUR JEEWAN
Present:- Mr. Lalit Rishi, Advocate, for the appellant(s) in LPA-1554,
1580, 1581, 1582, 1585, 1593 & 1594-2018.
Mr.Sandeep Singal, Advocate, for the appellant(s)
in LPA-1667 & 1726-2018.
Mr.Amitabh Tewari, Advocate
and Ms.Sanya Kaushal, Advocate, for respondent No.1.
Mr.Sunil K.Nehra, Advocate
and Mr.Suryaveer S.Surjewala, Advocate.
*****
G.S. Sandhawalia, J.:-
1. Challenge in the present set of 9 appeals, bearing LPA-1554,
1580, 1581, 1582, 1585, 1593, 1594, 1667 & 1726-2018 is to the order of
the learned Single Judge dated 03.10.2018 whereby the writ petitions filed
by the Management was accepted and the impugned awards and orders
passed by the Civil Courts were set aside. Resultantly, the workmen who
had been given the benefit of reinstatement along with back-wages have
been relegated to the remedy of filing of appeal before the Educational
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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Tribunal. The orders passed in four civil proceedings which had also been
allowed were arising out of the order of the Civil Judge (Jr.Division),
whereby arrears of back-wages were granted to the workmen in execution
of the award passed by the Labour Court. However, no appeals are
maintainable against the said orders and therefore the present set of
appeals only arise out of the writ petitions.
2. The reasoning which weighed with the learned Single Judge
to remand the matter to the Educational Tribunal was the judgment of the
Apex Court in TMA Pai Foundation & others Vs. State of Karnataka,
2002 (8) SCC 481 and the view taken by this Court that all disputes of
employees of educational institutes except gratuity matters are to be
decided by the Educational Tribunal.
3. Counsel for the appellants has rightly argued that the learned
Single Judge was not justified in setting aside the awards which had
culminated in favour of the workmen and there is no such absolute bar and
there was a principle of election. It was argued that once there was a right
which culminates under the Industrial Disputes Act, 1947 (for short, the
'Act') and the statutory protection of Section 25F, the remedy rightly had
been chosen and it did not lie in the mouth of the Management now to
contend that the matter should be relegated to the Education Tribunal. It is
submitted that the observations of the Apex Court were only to provide
speedy remedy and therefore, there was no such principle laid down that
no other Court would have jurisdiction. Once the Act was in place and the
workman could be termed as 'Industrial Workman' and seek protection
under the said Act, there was no reason to relegate them to the remedy at a
belated stage. The argument was further elaborated where the awards had
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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already been passed and were only being executed by way of seeking
attachment of the property and therefore, the litigation had become final
and the order of the learned Single Judge was not maintainable in such
circumstances.
4. Counsel for the Management on the other hand justified the
said findings recorded and submitted that the judgment was binding on all
Courts and therefore, the learned Single Judge was justified in relegating
the workmen to the alternate remedy which was available.
5. We are of the considered opinion that the learned Single
Judge did not kept in mind that the purpose of setting up of the Industrial
Courts and the right to seek legal redressal and which should be at the
earliest rather than relegating the litigant from one forum to the other and
prolonging the dispute which unnecessarily results in benefitting one party
or the other at the cost of the other and the faith in the system get diluted.
The factual aspects to be noticed apparently is that the Apex Court in
TMA Pai Foundation (supra) had held that a Teacher or a Principal and the
staff should not be going to the Civil Court for redressal of their
grievances and it is not in the interest of general education. Resultantly
directions had been issued that Education Tribunal should be set up in
each districts of the State and specialized Tribunal is to be set up. Thus, a
right of filing an appeal before the District Judge or the Addl.District
Judge was prescribed by the Government. The relevant part of the said
judgment reads as under:
"64. ...In the case of educational institutions, however, we are of
the opinion that requiring a teacher or a member of the staff to go
to a civil court for the purpose of seeking redress is not in the
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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interest of general education. Disputes between the management
and the staff of educational institutions must be decided speedily,
and without the excessive incurring of costs. It would, therefore,
be appropriate that an educational Tribunal be set up in each
district in a State, to enable the aggrieved teacher to file an appeal,
unless there already exists such an educational tribunal in a State
the object being that the teacher should not suffer through the
substantial costs that arise because of the location of the tribunal;
if the tribunals are limited in number, they can hold circuit/camp
sittings in different districts to achieve this objective. Till a
specialized tribunal is set up, the right of filing the appeal would
lie before the District Judge or Additional District Judge as
notified by the government. It will not be necessary for the
institution to get prior permission or ex post facto approval of a
governmental authority while taking disciplinary action against a
teacher or any other employee. The State government shall
determine, in consultation with the High Court, the judicial forum
in which an aggrieved teacher can file an appeal against the
decision of the Management concerning disciplinary action or
termination of service."
6. Keeping in view the said question, it was directed that
appropriate Tribunals be constituted and should be presided over by the
District Judge of a rank of District Judge while answering question
No.5(c) regarding the right of the Management even if it was administered
by the minorities. Relevant portion of the judgment reads as under:
"162-G. Q.5(c) Whether the statutory provisions which regulate
the facets of administration like control over educational agencies,
control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
employees, teachers and Principals including their service
conditions and regulation of fees, etc. would interfere with the
right of administration of minorities?
A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should be
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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minimal and the conditions of recognition as well as the conditions
of affiliation to an university or board have to be complied with,
but in the matter of day-to- day management, like the appointment
of staff, teaching and non-teaching, and administrative control
over them, the management should have the freedom and there
should not be any external controlling agency.
However, a rational procedure for the selection of teaching staff
and for taking disciplinary action has to be evolved by the
management itself. For redressing the grievances of employees of
aided and unaided institutions who are subjected to punishment or
termination from service, a mechanism will have to be evolved,
and in our opinion, appropriate tribunals could be constituted, and
till then, such tribunals could be presided over by a Judicial
Officer of the rank of District Judge. The State or other controlling
authorities, however, can always prescribe the minimum
qualification, experience and other conditions bearing on the merit
of an individual for being appointed as a teacher or a principal of
any educational institution.
Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State,
without interfering with the overall administrative control of the
management over the staff. Fees to be charged by unaided
institutions cannot be regulated but no institution should charge
capitation fee."
7. Thereafter, circular dated 10.08.2005 was issued by the
Registrar (Administration) of this Court authorizing the District &
Sessions Judge to hear the appeals of the employees of the aided/un-aided
technical institutions within their jurisdiction. The said communication
reads as under:
"From:
The Registrar (Administration)
Punjab & Haryana High Court,
Chandigarh.
To,
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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All the District & Session Judges
In the State of Haryana.
Dated, Chandigarh, the 10/8/05
Subject: Powers to hear the appeals of the employees of aided/un-
aided technical institutions against decision of management
in terms of Supreme Court Judgment in case TMA PAI
Foundation and others versus State of Karnataka (2002 (8)
SCC 481).
Sir/Madam,
I am directed to refer you on the subject cited above and to
authorize you to hear the appeals of the employees of aided/un-
aided technical Institutions within your jurisdiction.
Yours faithfully.
Sd/-
Registrar (Administration)
Endst. No. 23415 Gaz.II/IX/C.11, dated 10/8/05
Copy forwarded for information and necessary action to:-
1. The Chief Secretary to Govt. Haryana with reference to his
letter No.28/45/04/45III, dated 07-05-2005.
Sd/-
Registrar (Administration)"
8. Thereafter, the State issued notification dated 08.09.2005 that
the District & Sessions Judge had also been authorized to hear the appeals
and to redress the grievances of the employees of aided/un-aided technical
institutions while referring to the authorization granted by this Court. The
said notification reads as under:
"HARYANA GOVERNMENT TECHNICAL EDUCATION
DEPARTMENT
NOTIFICATION
The 8th September, 2005
No.10/71/04-4TE- In pursuance to the judgment dated 30 October,
2002 of the Hon'ble Supreme Court of India in TMA Pai
Foundation and others Versus State of Karnatka (2002) 8 SCC 481
wherein the Hon'ble Court has observed that for the redressal of
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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grievances of employees of aided/unaided technical institutions
who are subjected to punishment of termination of services, a
mechanism will have to be evolved by constituting appropriate
tribunals. The right of filing appeals would lie before the District
and Sessions Judge or Additional District and Session Judges till
the Tribunals are set up.
It is notified that the District and Session Judges in the State
of Haryana have been authorized to hear the appeals of the
employees of aided/unaided technical institutions against decision
of management within their jurisdiction by the Hon'ble Punjab and
Haryana High Court, Chandigarh vide No.23414 Gaz. II/IX, C.II
dated 10th August, 2005.
Ajit M. Sharan,
Commissioner and Secretary to
Government Haryana, Technical
Education Department."
9. The matter was further clarified by the Registrar General of
this Court while issuing instructions dated 03.04.2008 wherein
authorization was granted to hear the appeals of the employees of the
Aided-Unaided/ Medical/ Dental/ Ayurvedic/Homeopathic Institutions
against the decision of the Management. The said authorization reads as
under:
"No.11233 Gaz.II/IX.C.II
From
The Registrar General
Punjab and Haryana High Court,
Chandigarh
To
All the District & Sessions Judges
in the State of Haryana.
Dated, Chandigarh, the 03.04.2008
Subject: Setting of tribunal/tribunals and meanwhile notifying the
District Judge and Additional District Judge to hear the
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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appeals of the teachers against decision of Mgt. Private
unaided Instts.
Sir/Madam,
I am directed by Hon'ble the Chief Justice to refer you on
the subject cited above and to authorize you to hear the appeals of
the employees of aided/unaided Medical/Dental/Ayurvedic/
Homeopathic/Educational Insitutions against the decision of
Management within your jurisdiction.
Yours faithfully,
Sd/-
Joint Registrar (Rules),
for Registrar General
Endst. No.11234-Gaz.II/IX/CII Dated: 03.04.2008
Copy forwarded for information and necessary action to:-
1. The Commisioner & Secretary to Govt. Haryana, Health &
Medical Education Department, Chandigarh with reference
their letter No.18/18/2007-2HB-IV, dated 27.02.2008
Sd/-
Joint Registrar (Rules),
for Registrar General"
11. In continuation, on 28.05.2008, State Government issued
another notification substituting that the grievances of the employees of
Aided-Unaided/ Medical/ Dental/ Ayurvedic/ Homeopathic Institutions
would also have a right of filing appeals before the Addl.District Judge
through Tribunals as set up. Relevant portion of the judgment reads as
under:
"HARYANA GOVERNEMNT
MEDICAL EDUCATION AND HEALTH DEPARTMENT
NOTIFICATION
THE 28th May, 2008
No.18/18/07-2HBIV in pursuance of the judgment dated 30.12.02
of the Hon'ble Supreme Court of India in TMA Pai Foundation
and others Vs. State of Karnataka (2002) 8 SCC 481, wherein
Hon'ble Court has observed that for the redressal of grievances of
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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employees of aided / unaided Medical/Dental/ Ayurvedic/
Homeopathic Educational Institutions, who are subjected to
punishment or termination of services, a mechanism will have to
be evolved by constituting appropriate tribunals.
The right of filing appeals would lie before the District & Sessions
Judge or Addl. District & Sessions Judges till the Tribunals are set
up.
It is notified that all the District & Sessions Judges in the State of
Haryana have been authorized by the Hon'ble Punjab and Haryana
High Court, Chandigarh vide their No.11233 Gaz.II/IX.CII, dated
03.04.2008 to hear the appeals of the employees of aided/unaided
Medical/Dental/Ayurvedic/ Homeopathic/Health Educational
Institutions against the decisions of Management within their
jurisdiction.
Dated Chandigarh, the Sd/-
(NAVRAJ SANDHU)
Commissioner & Secretary to Govt. Haryana,
Health & Medical Education Deptt"
12. Eventually, on 07.05.2013, another notification was issued by
the State pertaining to the right of appeal of the employees of
Aided/Unaided Technical Schools against the orders of the Management.
Said notification reads as under:
"HARYANA GOVERNMENT
SCHOOL EDUCATION DEPARTMENT
Notification
The 7th May, 2013
"No.7/45-2010 PS(2) - In pursuance of the judgment dated
30.12.2002 of the Hon'ble Supreme Court of India in TMA
Pai Foundation and others Vs. State of Karnataka (2002) 8
SCC 481, wherein Hon'ble Court has observed that for the
redressal of grievances of employees of unaided
educational institutions, who are subjected to punishment or
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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termination of services, a mechanism will have to be
evolved by constituting appropriate tribunals. The right of
filing appeals would lie before the District & Sessions
Judge or Addl. District & Sessions Judges till the Tribunals
are set up.
Accordingly, District & Sessions Judges in the State of
Haryana have been authorized to hear appeals of employees
of aided/unaided technical education institutions against
decision of Management within their jurisdiction by the
Hon'ble Punjab and Haryana High Court, Chandigarh vide
No.23414 Gaz.II/IX.CII, dated 10.08.2005. The Tribunals
already notified by the Hon'ble High Court will also hear
appeals of employees of aided/unaided schools against the
orders of Management.
SURINA RAJAN
Principal Secretary to Government Haryana,
School Education Department, Chandigarh."
13. The Co-ordinate Bench of this Court in Management of
S.D.Model Senior Secondary School & another Vs. District Judge-
cum-Service Tribunal & another, 2014 (2) PLR 89 examined the issue
whether the Educational Tribunal could decide all service disputes and the
matters arising out of the disciplinary action and also the aspect whether
claim of gratuity could be adjudicated by the issuance of the said
notifications. Resultantly, it was held that the directions of the Supreme
Court was to provide an additional forum against the decisions of the
Management rendering their services and the notification issued on
28.05.2008 did not specify which of the orders passed by the Management
would be appealable and even the issue of dispute regarding the pay
fixation would fall within the legislative competence of the State
Government and therefore, the decision of the Management could be
challenged by way of appeal before the Education Tribunal including that
of the pay-scales. However, it was further held that wherein the issue arose
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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regarding payment of gratuity under the statute, the Tribunal would have
no jurisdiction as it was payable to the teaching and non-teaching staff
under the Payment of Gratuity Act. The relevant part and the conclusion
reads as under:
"13. We have heard Learned Counsel for the parties at length. It
appears that directions in T.M.A.Pai Foundation's case (supra) are
in the context of disciplinary action against a teacher or other
employees though clarifying that approval of any Government
authority before taking any disciplinary action by the Management
of a private unaided educational institution is not required. The
direction of the Supreme Court was to provide a judicial Forum
against the decision of the Management relating to the termination
of services. Therefore, strictly speaking, the direction of the
Supreme Court was to constitute Educational Tribunal for
determining the issues arising of disciplinary action initiated
against the teacher.
14. Though the circular of the High Court is only to provide a
Forum for presentation of the appeals, but the determination of the
scope of hearing of such appeals falls within the legislative
domain of the State Government independent of the order passed
by the Supreme Court. The notification dated 28.05.2008
specifically does not specify as to which orders passed by the
management would be appealable, but it is notified that all the
District & Sessions Judges have been authorized by the High
Court to hear appeals of the employees of aided/unaided
Medical/Dental/Ayurvedic /Homeopathic/ Educational Institutions
against the decision of Management within their jurisdiction. In
other words, the circular of this Court contemplating 'Forum' has
been adopted by the State for the purposes of presentation of
appeals. Such decision to provide an appeal against the decision of
the Management would include all orders which the Management
pass in relation to employee of the institution. Such decision to
contemplate filing of an appeal against the decision of the
Management shall be deemed to be taken in exercise of executive
powers of the State in terms of Article 162 of the Constitution of
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India in the absence of any other legislative enactment dealing
with the issue.
15. The education including technical education, vocational and
technical training of Labour specifically falls in Entry 25 of List
III of 7th Schedule to the Constittuion. However, in terms of
Article 243G of the Constitution read with 11th Schedule, Adult
and non-formal education is a function assigned to institution of
rural self-government. Similarly, Entry 13 of 12th Schedule read
with Article 243W empowers the Urban Local Bodies to promote
education. In fact, the subject of education may fall in one or the
other Entry of the 7th Schedule, but it could not be pointed out that
there is any other legislation on the subject of teachers and the
management of aided or unaided educational institutes in the
States except the Act. In the absence of any specific Statute
enacted by the Parliament, to regulate the terms of employment of
teachers of the educational institutions and the State having
enacted the Act, prima facie, it appears that all disputes relating to
pay scales and disciplinary proceedings etc. would fall within the
legislative competence of the State Government.
16. The subsequent notification dated 07.05.2013 does not change
the scope or jurisdiction of the Educational Tribunal in any
substantial manner. Therefore, any decision of the Management
could be challenged by way of an appeal before the Educational
Tribunal. Consequently, we find that though the Supreme Court in
T.M.A.Pai Foundation's case (supra), directed constitution of
Educational Tribunal relating to disciplinary matters, but in view
of the decision of the State Government, taken in exercise of the
executive powers of the State, the decision of the Management
regarding pay scale can also be subject matter of appeal before the
Educational Tribunal.
23. In view of the above discussion, we concluded as under:
(i) That an Educational Tribunal constituted in terms of the
direction of the Supreme Court in T.M.A.Pai Foundation's
case (supra), will not have the jurisdiction to decide issue of
payment of gratuity, as the same is payable to the teaching
and non-teaching staff in terms of the Payment of Gratuity
Act, 1972.
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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(ii) In respect of second question, the notification of the
State Government constituting Educational Tribunal will
include all service disputes arising out of an order passed
by the Management, as appealable to the Educational
Tribunal. Such right to appeal is not arising in view of the
judgment in T.M.A.Pai Foundation's case (supra), but in
exercise of the executive powers of the State.
(iii) The State Government shall consider appropriate
amendments in the Haryana School Education Act, 1995 in
the light of statement made by Mr. Poonia before this Court
expeditiously.
(iv) Since the controversy regarding the Forum for
adjudication of disputes relating to payment of gratuity has
been settled now, it shall be open to the aggrieved persons
to seek redressal under the Payment of Gratuity Act, 1972
in accordance with law, if the same is availed within two
months from today. The payment deposited by the
petitioners shall be subject to the decision of the Authority
under the Payment of Gratuity Act.
Since the questions of law have been answered, the matter be
placed before the learned Single Bench for appropriate decision."
14. It is in this background we are to deal with the factual matrix.
The workmen who were employed on ad-hoc basis as Lab Assistants for
89 days in the year 2005 on a fixed salary of Rs.2500/- per month,
continued in service and then their pay was revised and they were
designated as Lab Technicians in the pay-grade of Rs.3050-75-4590/- with
the initial start of Rs.3125/- with DA and other allowances as per Haryana
Government Rules w.e.f 01.09.2008. On 08.05.2015, after 10 years, the
services were dispensed with on the ground that they were not appointed
through proper channel and were relieved with immediate effect. A cheque
of Rs.54,474/- was given as 3 months notice/salary. Resulantly, demand
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notice dated 19.10.2015(Annexure P-7) under Section 2A of the 1947 Act
was served that they were being given the revised pay-scale of Rs.5200-
20200+2800 AGP with effect from 01.01.2013. Their work and conduct
was satisfactory and their services were terminated without assigning any
reason. They had worked for more than 240 days in a calendar year and
their services were likely to entitle them for reinstatement. No enquiry had
been conducted and junior persons were still working with the
Management.
15. The said demand notice was replied on the ground that there
was no selection procedure followed at the starting. However, the fact of
promotion and the scale of pay was admitted. The removal from service
was justified on account of the fact that 3 months notice had been given
and therefore, the workmen were rightly relieved from services. The claim
statement filed before the Labour Court (Annexure P-9) took the plea that
the provisions of Sections 25F, 25G and 25H were violated. The
mandatory provisions of the Punjab Industrial Rules and no enquiry
having been conducted and the orders of termination were without
jurisdiction and not by the competent authority were raised. A plea in
defence was taken that the employees of the educational institutions could
go to the Education Tribunal formed by the Government and the Courts
have no jurisdiction. However, it was justified that the appointment was
illegal from the beginning. The Management being the society was
competent to pass the order of removal from service and it was submitted
that no person junior were working with the Management.
16. The Labour Court noticed that the summoned record showed
that one Rajesh, Vinod and Pawan Kumar were appointed as Lab
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Technicians on 01.09.2008, 29.04.2010 and 09.09.2008 and they were still
working and their appointment letters were JW-1 to JW-3. The factum that
the statement of MW-1, Mohit Kumar Aggarwal, Assistant Professor was
also taken into consideration and the fact that in cross-examination he
admitted that juniors were still working. The seniority-list (Ext.M4A) did
not bear any date and the Management witness did not know when the
seniority-list had been prepared and the record had not been brought. The
admission regarding the revision of the pay of the workman and promotion
as Lab Technicians of the Electronic & Engineering Department was
noticed. Resultantly, a finding was recorded that the termination was done
and payment in lieu was given but no retrenchment in terms of Section
25-F was given and thus, there was non-compliance of the same. The
workman had worked for several years from time to time and therefore,
dispensing with the services was not through proper channel and was
farce. The defence that there was decline of students in the preceding years
was also rejected or that the staff was rendered surplus and that fresh
appointments were made and thus, the said appointees were still working
and therefore, there was also contravention of Sections 25G & 25H. The
issue of reinstatement or continuation was then discussed and accordingly,
it was held that there was no distinction between employees working on
regular basis and employees who had been working on daily basis and if
there was a violation of the statutory provisions, reinstatement was the
entitlement. Reliance was placed upon the judgments of the Apex Court in
Sports Authority of India Vs. Sunil Kumar, 2016 (2) RSJ 400, Rakesh
Kumar Aggarwal Vs. The Management of M/s Milk Plant, Ambala,
1992 (2) RSJ 466, Jasmer Singh Vs. State of Haryana & another, 2015
(3) RSJ 517 and Chinti Devi Vs. Presiding Officer, Industrial
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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Tribunal-cum-Labour Court, District Panipat & another, 2014 (2)
RSJ 3 and thus, the benefit of reinstatement was granted by the Labour
Court.
17. There is no dispute with the above-said proposition that
reinstatement would be rule and reliance can also be placed upon the
judgment of the Apex Court in Deepali Gundu Surwase Vs. Kranti
Junior Adhyapak Mahavidyala (D.ED.), (2013) 10 SCC 324. It is, thus,
apparent that the litigation initiated by the workmen was on the strength of
statutory provisions under the 1947 Act and the protection which was
provided to them and it was not justified for the learned Single Judge to
have relegated them to the remedy before the Education Tribunal once the
matter had already been decided. The Apex Court in The Premier
Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay &
others, 1976 (1) SCR 247, discussed the issue of the rights and
obligations arising out of the general law and under the Industrial Disputes
Act and held that the object of the Act provide adjudication and settlement
of disputes between the workman and the Management which is outside
the realm of common law. Resultantly, it was held that there is remedy
provided to the workman under the law and therefore, the Civil Court can
have the jurisdiction to decide the matter which had been objected and
which had been upheld by the Court and by Bombay High Court, both by
the Single Judge and by the Division Bench. Resultantly, it was held that
the Act was made with the purpose for settlement of industrial disputes
and for other purposes and thus, there is machinery provided under the
Act. The jurisdiction of the Civil Court would not be there and resultantly,
the suit was held not to be maintainable and once the dispute involved
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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enforcement of any right or obligation under the Industrial Disputes Act,
the remedy lay before the forum created. The following principles were
laid down:
"23. To sum up, the principles applicable to the jurisdiction of the
Civil Court in relation to an industrial dispute may be stated thus :
(1) If the dispute is not an industrial dispute, nor does it
relate to enforcement of any other right under the Act the
remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a
right or liability under the general or common law and not
under the Act, the jurisdiction of the Civil Court is
alternative, leaving it to the election of the suitor concerned
to choose his remedy for the relief which is competent to be
granted in particular remedy.
(3) If the industrial dispute relates to the enforcement of a
right or an obligation created under the Act, then the only
remedy available to the suitor is to get an adjudication
under the Act.
(4) If the right which is sought to be enforced is a right
created under the Act such as Chapter VA then the remedy
for its enforcement is either section 33C or the raising of an
industrial dispute, as the case may be."
18. The said view was followed by a Full Bench of this Court in
Sukhi Ram Vs. State of Haryana, 1982 PLR 717 and the issue was
whether Civil Court had jurisdiction to maintain a suit filed by the
workman in connection with the industrial dispute if no steps had been
taken earlier to have the same referred under Section 10 of the Act.
Resultantly, it was held that it was open to the workman to elect his
remedy and that he cannot have both and once they had chosen to agitate
their right before the Civil Court, they were entitled to claim it, as such,
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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once they had taken no steps to resort to the remedy under the Industrial
Disputes Act. In the present case, as noticed, the remedy had been chosen
and therefore, the workman could not be relegated by the learned Single
Judge to the Education Tribunal as apparently, they were seeking the
protection of statutory rights and the Labour Court had also granted the
same, on merits under Sections 25-G & 25-H of the Act which escaped the
notice of the learned Single Judge.
19. The three Judge Bench of The Rajasthan State Road
Transport Corporation Vs. Krishna Kant etc., 1995 (5) SCC 75, also
held that where dispute involves recognition, observance of enforcement
of rights or obligations under the Industrial Disputes Act which is sought
to be enforced, remedy would be to approach the forums created by the
said Act. In the said case, Civil Suits had been filed for declaration
regarding the disciplinary proceedings and the termination of services. The
objection had been taken that Civil Court would not have any jurisdiction
and resultantly, it was held that the suits filed by the workman were not
maintainable, however, direction was issued that the principles enunciated
in the judgment would not apply to all pending matters where decrees had
already been passed by the Trial Court. Relevant portion reads as under:
"36. Applying the above principles, we must hold that the suits
filed by the respondents in these appeals were not maintainable in
law. Even so, the question is whether we should set aside the
decrees passed in their favour by the Civil Courts. So far as Civil
Appeal No.3100 of 1991 is concerned, this Court had, while
granting leave (in S.L.P.(C) No.194 of 1991) ordered on January
29, 1991 that "insofar as respondent is concerned, he (appellants'
counsel) states that he will abide by the decree. Application for
stay is rejected". Therefore, there is no question of setting aside
the decree concerned in this appeal. However, so far as the other
For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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appeals are concerned, the position is slightly different. In Civil
Appeal No.4948 of 1991 and in civil appeals 5386,5387/95 arising
out of S.L.P.(C) Nos.10902 of 1992, 13152 of 1993 and 10263 of
1993, not only there is no such condition but this Court had
granted stay as prayed for by the appellant-Corporation. In two
other matters viz., in Civil Appeal No.9314 of 1994 and civil
appeal 5389/95 arising out of S.L.P.(C) No.14169 of 1993 the only
order is to issue notice. Having regard to the facts and
circumstances of these matters, we modify the decrees in these
matters (except the decree concerned in Civil Appeal No.3100 of
1991) by reducing the backwages to half. The decrees in all other
respects are left undisturbed. These orders are made in view of the
fact that the position of law was not clear until now and it cannot
be said that the respondents had not acted bonafide in instituting
the suits. Appeals disposed of accordingly.
37. It is directed that the principles enunciated in this judgment
shall apply to all pending matters except where decrees have been
passed by the Trial Court and the matters are pending in appeal or
second appeal, as the case may be. All suits pending in the Trial
Court shall be governed by the principles enunciated herein - as
also the suits and proceedings to be instituted hereinafter."
20. Thus, it is important to notice that in the present case, the
fruits of litigation had already been crystallized in favour of the workman
who had elected for his rights under the Act and therefore, it would not be
justified to refer him to the alternate remedies once he was claiming
certain statutory rights under the law. In similar situation in Rajasthan
State Road Transport Corporation & another Vs. Bal Mukund
Bairwa, 2009 (4) SCC 299, a three Judge Bench again decided the issue
that the jurisdiction of the Civil Court is plenary however if the claim is
made under the Industrial Disputes Act and the sister laws, the Civil Court
would have no jurisdiction. Relevant portion reads as under:
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"23. If an employee intends to enforce his constitutional rights or a
right under a statutory Regulation, the civil court will have the
necessary jurisdiction to try a suit. If, however, he claims his right
and corresponding obligations only in terms of the provisions of
the Industrial Disputes Act or the sister laws so called, the civil
court will have none. In this view of the matter, in our considered
opinion, it would not be correct to contend that only because the
employee concerned is also a workman within the meaning of the
provisions of the 1947 Act or the conditions of his service are
otherwise governed by the Standing Order certified under the 1946
Act ipso facto the Civil Court will have no jurisdiction. This
aspect of the matter has recently been considered by this Court in
Rajasthan State Road Transport Corporation & ors. vs. Mohar
Singh [(2008) 5 SCC 542]. The question as to whether the civil
court's jurisdiction is barred or not must be determined having
regard to the fact of each case."
21. Thus, once the workman had approached the Labour Court
for the same and got a finding in his favour it was not for the learned
Single Judge to derail the whole process at that point of time and relegate
him to the remedy which has been provided by the stature de-hors the
Civil Court. Reliance which has been placed upon precedents by the
learned Single Judge where matters which had been remanded to the
Education Tribunal wherein writ petitions had been filed and at the initial
stage, the employee had been relegated to the alternate remedy. The
judgments did not prescribe that where the matters have been finally
decided by the Industrial Adjudicature who had jurisdiction and had been
validly approached and the award was in favour and at that stage, the
matter could be then relegated to the alternative remedy and therefore, the
said judgments are distinguishable. We have also perused the orders
passed which were impugned though those cases are not subject matter of
the present appeals, it would be apparent that the order was of the Civil
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Court executing the award and the arrears had been claimed. It had been
noticed that the award had been passed in favour of the decree holder and
he had been reinstated with continuity of service and the dispute was qua
the back-wages and it had been directed that the decree holders'
calculation sheets were correct and directions were issued to make the
payment accordingly and the matter had been kept for the compliance of
the same. Thus, it was in Execution Applications filed under Section 11,
sub-sections (9) & (10) of the 1947 Act, for execution of the Labour Court
award that the workmen were seeking the benefits which fact escaped the
notice of the learned Single Judge.
22. Rather, it has also been brought to our notice that initially the
workman had approached the Educational Tribunal within 5 months of
their termination who then had given a statement that they would like to
raise an industrial dispute regarding their termination of services. The said
order was passed in the presence of the Management's counsel and at that
point of time, no objection had been raised and now it would not lie in the
mouth of the Management that they should be sent back to the Education
Tribunal. The order reads as under:
"Present: All the five petitioners in person with Shri
V.S.Singhal Advocate
Shri Gajender Mor, Pleader for respondents No.1
and 2.
Respondent No.3 already exparte.
Shri R.P.Gupta, counsel for respondents No.4 & 5.
Shri V.S.Rathi, counsel for respondent No.6.
ORDER
In view of the joint statement of the petitioners recorded separately, the petition is dismissed as withdrawn and they are at liberty to raise the industrial dispute regarding termination of their For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and 5 more.
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Announced:
Dated : 8.10.2015 Sd/-
(Sushil K. Gupta)
District Judge,
Rohtak"
23. Resultantly, keeping in view the above discussion, we are of the considered opinion that the matter has to be remanded to the learned Single Judge for hearing on merits as to whether the award is liable to be sustained or not. Accordingly, the present appeals are allowed and the matter is remanded to the learned Single Judge for fresh decision on merits. Office to list the writ petitions before the learned Single Judge as per Roster.
(G.S. SANDHAWALIA) JUDGE (HARPREET KAUR JEEWAN) 23.02.2023 JUDGE sailesh Whether speaking/reasoned : Yes Whether Reportable : Yes Neutral For Subsequent orders see LPA-1580-2018, LPA-1581-2018, LPA-1582-2018 and Citation No:= 5 more.
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