Delhi High Court
Lancer Convent Sr. Sec. School vs The Govt. Of Nct Of Delhi & Anr. on 13 May, 2013
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6993/2012 & conn.
% 13th May, 2013
1. W.P.(C) No. 6993/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
2. W.P.(C) No. 6994/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
3. W.P.(C) No. 6995/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
WPC 6993/2012&conn. Page 1 of 10
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
4. W.P.(C) No. 6996/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
5. W.P.(C) No. 6997/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
6. W.P.(C) No. 6998/2012
WPC 6993/2012&conn. Page 2 of 10
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
7. W.P.(C) No. 6999/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
8. W.P.(C) No. 7000/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
WPC 6993/2012&conn. Page 3 of 10
Mr. C.S.Parashar, Advocate for R-2.
9. W.P.(C) No.7001/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
10. W.P.(C) No. 7002/2012
LANCER CONVENT SR. SEC. SCHOOL ......Petitioner
Through: Mr. Sudhir Nandrajog, Sr. Advocate with
Mr. S.N.Gupta, Advocate.
VERSUS
THE GOVT. OF NCT OF DELHI & ANR. ...... Respondents
Through: Ms. Shawana Bari, Advocate for Mr. Rajiv
Nanda, Advocate for R-1.
Mr. C.S.Parashar, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
WPC 6993/2012&conn. Page 4 of 10
VALMIKI J. MEHTA, J (ORAL)
1. Identical issues are involved in all these 10 petitions and therefore, the same are being disposed of by this common judgment. The issue in this batch of cases is as to whether the employees of a school governed by the Delhi School Education Act and Rules, 1973, after invoking the remedy under the Industrial Disputes Act, 1947 on the ground that they are workmen, withdraw those cases before the Industrial Tribunal/Labour Court without taking permission for filing a case before the Delhi School Tribunal functioning under the Delhi School Education Act and Rules, 1973 , yet claim that the remedy under the Delhi School Tribunal is open to such employees. Putting it differently, whether the spirit of the provision of Order 23 Rule 1 CPC applies for barring the employees of a school in approaching the Delhi School Tribunal, although the earlier cases filed before the Industrial Tribunal/Labour Court are withdrawn without liberty to file proceedings before the Delhi School Tribunal. It is not disputed that the employees of the school, and who are for the sake of convenience referred to as the respondents, did apply before the Labour Court for withdrawal of the cases with liberty to be granted for approaching the Delhi School Tribunal, however, the Labour Court only allowed the applications for withdrawal of the cases but did not give liberty/permission to file proceedings before Delhi School Tribunal. WPC 6993/2012&conn. Page 5 of 10
2. So far as the issue as to whether the employees of a school can pursue the remedy under the Industrial Disputes Act, 1947, this aspect is no longer res integra and is decided by a learned Single Judge of this Court in the case of Apeejay School Vs. Darbari Lal & Ors. 170(2010) DLT 608. The learned Single Judge in this detailed judgment has examined various judgments of different Courts, including of the Supreme Court, and held that the jurisdiction of the Industrial Tribunal/Labour Court under the Industrial Disputes Act is not barred in relation to disputes raised by workmen employed in schools and covered by the Delhi School Education Act and Rules, 1973. Effectively, what the learned Single Judge holds in the case of Apeejay School (supra) is that employee of a school can have two remedies with respect to removal etc; one remedy is for redressel of his grievance before the Delhi School Tribunal under the Delhi School Education Act and Rules, 1973; and second before the Labour Court/Industrial Tribunal under the Industrial Disputes Act, 1947.
3. On behalf of the petitioner, reliance is placed upon the judgment of the Supreme Court in the case of Agra District Co-operative Bank Ltd. Vs. Prescribed Authority, Labour Court, U.P. & Ors., AIR 2001 SC 2396 to argue that the spirit of Order 23 Rule 1 CPC applies when an employee of a school withdraws his case filed before the Labour Court/Industrial Tribunal without WPC 6993/2012&conn. Page 6 of 10 taking permission to file the case before the Delhi School Tribunal, and in which circumstance, the remedy before the Delhi School Tribunal would be barred. Para 7 of the judgment is relied upon and which reads as under:-
7. So far as the third contention is concerned regarding jurisdiction of the Labour Court, we make it clear that it was not the first round of litigation that the parties had gone before the Labour Court, and at that stage if the Labour Court had no jurisdiction, that point should have been raised at once when the matter came up before the High Court when the matter was remanded to the Labour Court to decide on merits of the case.
Apart from that this Court in (1970) 1 SCR 205: (AIR 1970 SC 245: 1970 Lab IC 285) Co-operative Central Bank Ltd. v. Addl. Industrial Tribunal, Andhra Pradesh considered the identical provisions arising under the Andhra Pradeshh Co-operative Societies Act and held that Labour Court has jurisdiction in such matters. The position is that when a question of employment arises certainly it cannot be said that the doors of the Labour Court are shut. It is possible that in certain cases Section 70 of the U.P.Co-operative Societies Act may be attracted. If parties avail of a remedy in one of the jurisdictions, that proceeding must be pursued to its logical end and should not be given up in the middle and start another proceedings under another enactment. That would be a wholesome rule to be followed rather than to state that one or the other tribunal has no jurisdiction.
(Emphasis added)
4. Though learned counsel for the respondent no.2 did seek to place reliance upon various judgments to argue that the remedy before the Delhi School Tribunal is not barred, however, we are not concerned in these cases as to whether Delhi School Tribunal does not have jurisdiction; of course it has; but the issue is WPC 6993/2012&conn. Page 7 of 10 whether such jurisdiction could be invoked after withdrawal of the cases filed under the Industrial Disputes Act, 1947 without taking permission of the Labour Court/Industrial Tribunal. In my opinion, in view of the categorical ratio of the Supreme Court in the case of Agra District Co-operative Bank Ltd. (supra) as reproduced above, since no permission was taken of the Labour Court/Industrial Tribunal, the respondents could not invoke the remedy before the Delhi School Tribunal. The judgments which are relied upon on behalf of the respondent no.2 in the cases of R.C.Tiwari Vs. M.P.State Co-operative Marketing Federation Ltd. and others AIR 1997 SC 2652 and Ghaziabad Zila Sahkari Bank Ltd. Vs. Addl. Labour Commissioner & Ors. II (2007) SLT 231 will have no application to the facts of the present case not only in view of the ratio of the judgment in the case of Apeejay School (supra) which is binding on me, but also because the Supreme Court in the judgment of Agra District Co-operative Bank Ltd. (supra) has categorically held that if one remedy is pursued, then, such remedy will have to be pursued to the hilt and it cannot be withdrawn midway for approaching another forum.
5. A peculiar situation arises in the present cases because respondents may in fact be remediless because on one hand they have withdrawn the cases before the Industrial Tribunal/Labour Court, and they are also now being denied WPC 6993/2012&conn. Page 8 of 10 the remedy of continuing their proceedings before the Delhi School Tribunal. In my opinion, this issue need not detain us in view of the two judgments of the Supreme Court in the case of Bhagubhai Dhanabhai Khalasi & Anr. vs. The State of Gujrat & Ors. (2007) 4 SCC 241 and Sarva Shramik Sanghatana (K.V), Mumbai vs. State of Maharashtra &Ors. (2008) 1 SCC 494.
6. The first judgment of the Supreme Court in the case of Bhagubhai (supra) specifically states that if a person applies for permission with liberty to file a fresh case, he cannot be denied the liberty while at the same time allowing withdrawal of his matter because that would put the person to an injustice because he would then have no remedy left. The ratio in the case of Bhagubhai (supra) squarely applies to the present case more so because the applications which were filed before the Labour Court were conditional applications i.e withdrawal was sought conditionally upon granting of liberty and both of which aspects cannot be separated i.e either the application is allowed with condition on the basis of which applications were filed or applications should not have been allowed at all. As held in Bhagubhai (supra) a person cannot be left remediless. The judgment in Sarva Shramik Sanghatana (supra) holds that Order 23 CPC does not apply to proceedings under the Industrial Disputes Act, 1947.
WPC 6993/2012&conn. Page 9 of 10
7. Accordingly, petitions are allowed. Impugned orders of the Delhi School Tribunal dated 28.8.2012 holding that the Delhi School Tribunal has jurisdiction to entertain and decide the disputes is set aside. Respondents will be however at liberty to apply for revival of their cases before the Labour Court in view of the judgments of the Supreme Court in the cases of Bhagubhai (supra) and Sarva Shramik Sanghatana (supra). The writ petitions are allowed subject to the right of the respondents to revive the proceedings before the competent forum under the Industrial Disputes Act, 1947 and which were withdrawn in terms of the order dated 29.10.2010. In the peculiar facts of this case I am exercising my jurisdiction under Article 226 of the Constitution of India for reviving proceedings under the Industrial Disputes Act, 1947, in addition to any other rights which the respondents may have to revive the proceedings under the Industrial Disputes Act, 1947.
8. The writ petitions stand disposed of accordingly. All pending applications also stand disposed of.
MAY 13, 2013 VALMIKI J. MEHTA, J.
ib
WPC 6993/2012&conn. Page 10 of 10