Delhi High Court
Ramaswamy Palledar vs Secretary To The Government Of Nct Of ... on 12 May, 2000
Equivalent citations: 2000VIIAD(DELHI)128, 2000(56)DRJ646, [2000(86)FLR682]
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. Petitioner in this case was working as "Palledar" with respondent No. 2 namely, Super Bazaar Cooperative Stores Limited. On 20th July, 1991 he was suspended in contemplation of disciplinary proceedings against him thereafter on 5th August, 1991 departmental enquiry was ordered. Only allegation allegation levelled against the petitioner was that he alongwith another worker named Mr. Madho Singh, in connivance with each other attempted to pilfer one bag of 40 kg of indigenous sugar then valued at Rs. 386/-, from the store of R.D.C., I.N.A. branch on 21st May, 1991. while loading the bag of sugar in vehicle No. DHG-5068. Enquiry was held. Enquiry Officer returned his findings holding that charges stood proved against the petitioner and on that basis of order dated 6th July, 1992 was passed imposing penalty of removal from service. Petitioner filed statutory appeal which was also rejected vide order dated 19th September, 1992. Thereafter, petitioner filed Civil Writ Petition No. 2376 of 1995 in this Court praying for quashing of order of punishment. This petition was dismissed by this Court vide order dated 21st March, 1995. The said order reads as under:-
"The Counsel for the petitioner has brought to our notice the judgment of the Supreme Court in Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and Others, wherein it has been laid down that before awarding of punishment a show cause notice proposing the penalty is to be given to the delinquent officer alongwith a copy of the enquiry report. But the Hon'ble Supreme Court has also laid down that punishment awarded in the disciplinary proceedings where no copy of the enquiry report has been supplied would not be set at naught unless and until the delinquent officer shows that some prejudice has been caused to such person by non-supply of the copy of the enquiry report."
In the present case the petitioner has not given any facts which could show that non-supply of copy of the enquiry report has caused him any prejudice. Moreover, we have perused the grounds of appeal and we find that even in the grounds of appeal it was not mentioned that non-supply of enquiry report by the disciplinary authority before imposing the penalty has caused him any prejudice. Counsel for the petitioner has submitted that from the allegation of conspiracy the Court should infer that unless and until copy of the enquiry report had been supplied to the petitioner the petitioner could not have met the findings of the enquiry officer and it should be further inferred that prejudice has been caused to the petitioner. We do not agree with this submission of learned counsel for the petitioner.
The writ petition is dismissed in limine Parties to bear their own costs.
2. After the aforesaid order was passed petitioner raised industrial dispute challenging the impugned order of punishment of removal from service and filed statement of claim dated 19th June, 1995 before the Conciliation Officer. The conciliation proceedings ended in failure and Conciliation Officer submitted his report. Thereafter, Secretary (Labour) to the Government of NCT of Delhi sent communication dated 5th March, 1997 informing that it was not a fit case for reference to Industrial Tribunal or Labour Court. Following reasons were forwarded for refusing to make reference in the impugned order:-
"The workman has already agitated his dismissal before the Hon'ble High Court of Delhi by way of Civil Writ No. 2376 of 1983 which has been dismissed vide order dated 21.3.95."
3. Petitioner filed review petition which was also rejected by order dated 18th November, 1997 on the ground that no new facts had been brought to the notice which warranted review of the order dated 5th March, 1997. Petitioner filed this petition challenging order dated 5th March, 1997 by which reference is rejected and order dated 18th November, 1997 rejecting petitioner's review application.
4. Assailing the aforesaid orders, Mr. Rakesh Tikku as well as Mr. V. Manohar, learned counsel appearing on behalf of the petitioner argued that filing of the writ petition and dismissal thereof constituted no bar to raise industrial dispute as no res judicata applied in the case. It was further submitted that writ petition No. 2376 of 1995 was dismissed in limine and summary dismissal does not constitute res judicata. In support of their submission, petitioner relied upon the judgment of Supreme Court in the case of Union of India and another Vs. Ranchi Municipal Corporation, Ranchi and others . It was also submitted that the writ petition was based on different cause of action that the cause of action on which industrial dispute was founded inasmuch as in Civil Writ Petition No. 2376 of 1995 the penalty of removal was challenged on the ground that respondent No. 2 the disciplinary authority had not supplied the copy of the enquiry report before imposing the penalty whereas the industrial dispute was raised on the ground that proper enquiry was not held and the findings of the Enquiry Officer in the enquiry report were not based on evidence and were perverse. Therefore, according to the petitioner, he could raise the industrial dispute notwithstanding dismissal of this writ petition. It was further argued that respondent No. 2 itself in the counter affidavit filed in Civil Writ Petition No. 2376 of 1995 had taken the objection that writ petition was not maintainable and petitioner had efficacious remedy under the provisions of Industrial Disputes Act and in this view of the matter it was permissible for the petitioner to raise industrial dispute.
5. The arguments raised by the petitioner may look attractive in first blush. However a little scrutiny thereof in the light of legal position on this aspect, would expose the hollowness of the arguments raised by the petitioner which are without any merit and thus this petition warrants to be dismissed. The facts narrated above clearly demonstrate that the petitioner had challenged order of removal by filing Civil Writ Petition No. 2376 of 1993 in which he was unsuccessful. Same removal order was sought to be challenged by raising industrial dispute thereafter. Respondent No. 1 has therefore, rightly refused to make the reference on the ground that petitioner had already agitated his dismissal before this Court by way of Civil Writ Petition No. 2376 of 1993. It is a farcical contention raised by the petitioner that the ground on which the order of penalty was challenged in the writ petition was different from the grounds on which the same order was sought to be challenged by invoking the machinery provided under the Industrial Disputes Act. After the petitioner was awarded the punishment, petitioner had more than one forum available to challenge that order. He could either file a writ petition before High Court under Article 226 of Constitution of India or raise industrial dispute. Petitioner elected to file writ petition. In this writ petition, it was permissible for the petitioner to challenge the order of punishment on any or all the grounds available to him. Merely because he chose to impugn the order of punishment on a particular ground and having lost in the same does not give him the right to challenge that very order on fresh grounds. If this is permitted, there would be no end to litigation. Infact Explanation IV of Section 11 of Code of Civil Procedure which is a facet of constructive res judicata is meant to curb such practices only. Explanation IV reads as under:-
Explanation IV:
Any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
6. Thus when the petitioner could not be permitted to file writ petition again, challenging his dismissal, on fresh grounds he could not be permitted to achieve this by invoking some other remedy. What can not be done directly would not be permitted to be done indirectly. Matter can be looked into from another angle also. When more than one for a are available to the petitioner to challenge a particular order and he elects to choose one forum, thereafter he is precluded from choosing other for a for same cause of action. This is popularly known as 'Doctrine of Election' which is based on the maxim "that a person cannot approbate or reprobate at the same time". This same principle is stated in White and Tudor's Leading Cases in Equity Vol. 1 and Eds. at page 444 as follows:-
"Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both."
7. This doctrine has been applied in India also, based on sound public policy (refer Beepathuma Vs. Shankaranarayana , R.N. Gosain Vs. Yashpal Dhir , Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, ).
8. In the present case this Court had dismissed the writ petition by passing speaking order. it is a matter of common knowledge that many a times. Courts dispose of the writs at admission stage by passing detailed order. Once the petitioner challenged the order of punishment by filing writ petition and the said writ petition was dismissed on merits the effect of that is to conclude the matter inter partes. The matter having thus concluded cannot be agitated again before other forum stating that the ground taken now is different. As already pointed out, it was for the petitioner to choose one of the remedies available before him. Once he opted for a particular remedy, he did so with all the limitations attached to it. It was his own volition without any imposition. Thus various judgments cited by the petitioner are not applicable on the facts of this case.
9. It is now well settled that the appropriate government while deciding as to whether the dispute is to be referred for adjudication or not, acts in administrative capacity and the order which is passed is of administrative nature. While passing such an order the appropriate government is not supposed to decide the questions which are to be decided by the Labour Court and/or Industrial Tribunal by way of adjudication. However, it is open for the appropriate government to determine as to whether any Industrial Dispute exists which needs reference to the Labour Court and/or Industrial Tribunal for adjudication.
10. In the present case the appropriate government while refusing to make the reference gave valid reason in support of the same, namely, petitioner had already agitated his dismissal before this Court by way of Civil Writ Petition No. 2376 of 1995 which was dismissed vide order dated 21st March, 1995. While doing so appropriate government was not delving into the arena of adjudication. Recent judgment of the apex Court in the case of Secretary, India Tea Association Vs. Ajit Kumar Barat and others reported in 2000 LLR 506 clears the cloud and clarifies the position in law on this aspect. In that case appropriate government had refused to make the reference on the ground that the employee who sought to raise industrial dispute was not a "workman" within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. Upholding this decision of the appropriate government, it was held by Supreme Court that it was permissible for the appropriate government to under take this exercise and the argument that this aspect could only be decided by Labour Court/Industrial Tribunal on reference being adjudicatory function was repelled in the following words:-
Mr. Bharat has urged that the question whether he was a workman is a dispute question of fact and can be decided only by the Industrial Tribunal and not by the State Government. In this connection, he has placed reliance on a decision of this Court in Abad Dairy Oudh Vitran Kendra Sanchalak Mandal Vs. Abad Dairy & Others, 1990 (60) FLR 282 (SC). This Court observed as follows:
"Having regard to the facts and voluminous evidence sought to be adduced by both parties, the question whether the appellants are workmen requires detailed investigation of facts. The issue requires detailed examination and can be satisfactorily adjudicated upon only by a Tribunal.
Thus, it appears in that case the question required detailed investigation in view of voluminous evidence sought to be adduced but it is not so, in the case in hand. Therefore, the above decision is not relevant for our purpose. The ratio laid down by this Court in Prem Kumar (supra) squarely covers this appeal as it does not appear from the order that the State Government took into consideration any irrelevant or foreign material."
11. The Court summarised the position in law in the following words:-
1. The appropriate Government would not be justified in making a reference under Section 10 of the Act without satisfying itself on the facts and circumstances brought to its notice that an industrial dispute exists or apprehended and if such a reference is made it is desirable wherever possible, for Government to indicate the nature of dispute in the order of reference:
2. The order of the appropriate Government making a reference under Section 10 of the Act is an administrative order and not a judicial or quasi judicial one and the Court, therefore, cannot canvass the order of the reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial order:
3. An order made by the appropriate Government under section 10 of the Act being an administrative order no lis is involved, as such an order made on the subjective satisfaction of the Government;
4. If it appears from the reasons given that the appropriate Government took into account any consideration irrelevant or foreign material, the Court may in a given case consider the case for a writ of mandamus and;
5. It would, however, be open to a party to show that what was referred by the Government was not an industrial dispute within the meaning of the Act;
12. One may also refer to the judgment of National Engineering Industries Limited Vs. State of Rajasthan and others, wherein the Court struck down the reference order on the ground that the matter referred was covered by the Tripartite Agreement arrived at among the Management, labour union and the staff union and in view of such settlement it could not be said that "industrial dispute" exist which needed to be referred for adjudication.
13. Another judgment of relevance is the case of Nedungadi Bank Limited Vs. K.P. Madhavan Kuttly reported in 2000 LLR 340 and it would be apt to quote the following observations relevant to this context :
"In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances industrial dispute did arise or was even apprehend after lapse of about seven years of the dismissal of the respondent. Whenever a workman raised some dispute it does not become industrial dispute and appropriate government cannot in a mechanical fashion make the reference of the alleged dispute terming as industrial dispute." .
14. It is totally misconceived on the part of the petitioner to contend that the remedies are based on two different causes of action. Cause of action is same namely, punishment of removal from service which was challenged by filing the writ petition and which was again sought to be challenged by raising the industrial dispute. It is the ground taken which may be different. Different grounds taken by the petitioner are confused as different causes of action. However, as pointed out above, it is not permissible for the petitioner to invent new grounds and elect new forum after having failed once in one particular forum. Accordingly, this writ petition is dismissed.