Delhi High Court
The Management Of Dtc vs Kishan Lal on 17 May, 2010
Author: Kailash Gambhir
Bench: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3103/99
Judgment reserved on: 2.2.2010
% Judgment delivered on: 17.05.2010
The Management of ...... Petitioner.
D.T.C.
Through: Ms. Charul Sarin, Adv.
versus
Kishan Lal ..... Respondent
Through: Mr. Anil Mittal, Advocate
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may Yes
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
KAILASH GAMBHIR, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the impugned award dated 8.1.1998, whereby the learned labour W.P.(C) No. 3103/99 Page 1 of 8 court directed reinstatement of the respondent workman along with back wages and continuity of service.
2. Brief facts for deciding the present petition are that the respondent was confirmed as a driver with the petitioner corporation on 25.9.1984 and on 26.8.1985, he hit a bicycle resulting in the death of rider of the bicycle. Thereafter, a charge sheet was issued to the respondent and an enquiry was set up where the respondent was found guilty and hence his services were terminated on 23.10.1986. The respondent filed a writ (WP(C) 553/1987) before this court which was dismissed. Thereafter an industrial dispute bearing ID No. 638/87 was raised by the respondent and vide order dated 8.1.1999 the reference was answered in favour of the respondent with the directions to grant reinstatement with full back wages and continuity of service. Feeling aggrieved with the said award, the petitioner has preferred the present petition.
3. Assailing the said award, Ms. Charul Sarin counsel for the petitioner, submitted that the enquiry conducted by the enquiry officer against the respondent workman was proper after W.P.(C) No. 3103/99 Page 2 of 8 due observance of the principles of natural justice and therefore, the same did not merit any interference by the labour court. Counsel for the petitioner further submitted that the learned labour court failed to appreciate the fact that acquittal of the respondent from the criminal proceedings would not ipso faco absolve him from the liability so far the disciplinary action was concerned. Counsel for the petitioner further argued that the learned labour court also failed to appreciate that the dismissal of the writ petition filed by the respondent workman without seeking any leave of the court to raise the industrial dispute would operate as res judicata and therefore raising of industrial dispute by the respondent workman was clearly barred by the principles of res judicata and therefore, the award passed by the labour court on this ground alone, is liable to be set aside. In support of her arguments, counsel for the petitioner placed reliance on the judgments of the Apex Court in Kerala Solvent Extractors Ltd. Vs. A. Unnikrishnan & Anr. (2006) 13 SCC 619 and T.N.C.S.Corpn.Ltd. Vs. K. Meerabai, (2006) 2 SCC
255. W.P.(C) No. 3103/99 Page 3 of 8
4. Refuting the said submissions of the counsel for the petitioner, counsel for the respondent submitted that the accident in question was not caused on account of rash and negligent driving of the respondent workman and accordingly the respondent workman also stood acquitted by the criminal court vide judgment dated 8.2.93 and therefore, the respondent could not have been held responsible for the accident which did not occur on account of his negligence. Counsel for the respondent also submitted that even before the enquiry officer, no independent evidence was produced by the petitioner to prove any kind of negligence on the part of the respondent and therefore the enquiry proceedings are rightly held to be perverse by the learned labour court. Counsel thus submitted that in the absence of any evidence led by the petitioner to prove culpability of the respondent in the accident in question, no fault can be found with the order passed by the learned labour court on the preliminary issue as well as in the final award in question. Counsel for the respondent also submitted that the writ petition filed by the respondent was dismissed in limine and therefore, there was no decision of the writ court on the merits of the case W.P.(C) No. 3103/99 Page 4 of 8 so as to debar the respondent to raise the industrial dispute. Counsel thus submitted that raising of any industrial dispute by the respondent cannot be held to be barred by the principles of res judicata. In support of his arguments, counsel for the respondent placed reliance on the judgment of the Apex Court in Nand Kishore Prasad Vs. The State of Bihar (AIR 1978 SC 1277) and Smt. Pujari Bai Vs. Madan Gopal (AIR 1989 SC 1769)
5. I have heard learned counsel for the parties at considerable length and perused the record.
6. On the preliminary issue of enquiry, the learned labour court clearly found that the petitioner management failed to lead any evidence before the enquiry officer to prove negligence on the part of the respondent management in causing the accident in question. The only evidence adduced by the petitioner management before the enquiry officer was that of one Amarjit Singh, who admittedly was not an eye witness of the accident and who clearly admitted before the enquiry officer that when he reached the spot the bus and the cycle were already removed W.P.(C) No. 3103/99 Page 5 of 8 from the spot. The learned labour court thus found that the findings of the enquiry officer were not based on any evidence and the same could not form the basis of dismissal of the workman. After the said preliminary issue on the enquiry was decided against the petitioner management, the petitioner management did not produce any other evidence to establish the misconduct of the respondent workman and in fact was proceeded ex parte. In the absence of any other evidence led by the petitioner management to prove the culpability of the respondent, no fault can be found with the final award holding the termination of the respondent workman as illegal and unjustified.
7. There is no force in the argument of the counsel for the petitioner that raising of the industrial dispute by the respondent workman was barred by the principles of res judicata as indisputably, the writ petition filed by the respondent workman was dismissed in limine and therefore there was no decision of the court on the merits of the case. It is a settled legal position that dismissal of writ petition in limine will not create a bar of res judicata to seek an alternative remedy as available to a party. It W.P.(C) No. 3103/99 Page 6 of 8 would be worthwhile to refer the relevant para of the judgment of the Apex Court in Pujari Bai vs. Madan Gopal (supra) here:
"This takes us to the question of res judicata. The question is whether the suit of the appellant was barred by res judicata in view of the summary dismissal of her writ petition earlier. It is not disputed that the writ petition filed by the appellant against the order of the Assistant Consolidation Officer was dismissed in limine. This order dated 14-4-1969 was passed by the Division Bench of Punjab and Haryana High Court. It was a one word order. The question of res judicata apparently arises when a controversy or an issue between the parties has been heard and decided. This Court in Workmen v. Board of Trustees of Cochin Port Trust1 considered this principle and observed :
(SCC p. 125, para 10 : SCR p. 977) But the technical rule of res judicata, although a wholesome {State Page 440} rule 1. based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an exent so as to found it on mere guesswork. To illustrate our veiwpoint, we may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of certiorari to challenge some order or decision on several grounds. If the writ petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Article 32 or Article 136 directed from the same order or decision. If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata.
24. It thus becomes clear that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy. The High Court and the courts below, therefore, were not right in throwing out the suit of the appellant on the ground of res judicata."W.P.(C) No. 3103/99 Page 7 of 8
Hence, the question of res judicata could have arisen only when the controversy in issue between the parties would have been heard and finally decided by the competent court of jurisdiction and in the present case the writ petition filed by the respondent was merely dismissed in limine and not on merits.
8. Hence, in the light of the above discussion, I do not find any merit in the present petition and the same is hereby dismissed.
May 17, 2010 KAILASH GAMBHIR, J.
mg
W.P.(C) No. 3103/99 Page 8 of 8