(Surya Kant and J.K. Maheshwari, JJ.)
Civil Appeal No. 1298/2023 (@Special Leave Petition (Civil) No. 3849/2023) (@Special Leave Petition (Civil) Diary No. 5103/2023), decided on February 20, 2023
With
Civil Appeal No. 1299/2023 (@Special Leave Petition (Civil) No. 3851/2023) (@Special Leave Petition (Civil) Diary No. 5110/2023)
With
Civil Appeal No. 1311/2023 (@Special Leave Petition (Civil) No. 8420/2022)
Sub Divisional Officer Laxmangarh and Another _______ Appellant(s);
v.
Hariom Sharma and Another ______________________ Respondent(s).
Civil Appeal No. 1298/2023 (@Special Leave Petition (Civil) No. 3849/2023) (@Special Leave Petition (Civil) Diary No. 5103/2023); Civil Appeal No. 1299/2023 (@Special Leave Petition (Civil) No. 3851/2023) (@Special Leave Petition (Civil) Diary No. 5110/2023); and Civil Appeal No. 1311/2023 (@Special Leave Petition (Civil) No. 8420/2022)
The Order of the court was delivered by
Order
SPECIAL LEAVE PETITION (CIVIL) Diary No. 5103/2023) & SPECIAL LEAVE PETITION (CIVIL) Diary No. 5110/2023):-
1. Delay condoned.
2. Applications seeking exemption from filing certified copy of the impugned Order as also seeking exemption from filing official translation of the Annexures are allowed.
3. Issue notice.
4. Leave granted.
5. The Sub-Divisional Officer, Laxmangarh, District Alwar, Rajasthan as well as District Collector, Alwar, Rajasthan are aggrieved by the Judgment dated 18-11-2021 passed by the Division Bench of the High Court of Judicature at Rajasthan, Bench at Jaipur, whereby their intra-court appeal was dismissed, upholding the order of the learned Single Judge dated 24-03-2021, which in turn, affirmed the award passed by the Labour Court except that the learned Single Judge set aside the award to the extent of granting 25% back-wages. However, direction to reinstate the respondents-workmen with continuity of service and other consequential benefits (except back-wages) was affirmed.
6. We have heard learned counsel for the parties and gone through the material placed on record.
7. The Division Bench of the High Court in a self-speaking order, has considered the finding of fact that the workmen actually discharged their duties for more than 2½ years and the evidence produced before the Labour Court vividly lift the veil and established relationship of master and servant between them and the appellant-Department.
8. The appellants’ plea that the respondent – workmen were engaged through contractor was thus turned down and it was held that they were direct employees of the department.
9. It being a question of fact and having been answered in favour of the respondent – workmen by three forums, we are of the considered view that no case to interfere with such finding of fact in exercise of our power under Article 136 of the Constitution is made out.
10. The Civil Appeals are, accordingly, dismissed.
11. The respondent-workmen shall be entitled to notional pay fixation and other service benefits as affirmed by the High Court.
SPECIAL LEAVE PETITION (CIVIL) NO. 8420/2022):-
12. Leave granted.
13. The appellant – workman is aggrieved by the Judgment dated 18-11-2021 passed by a Division Bench of the High Court of Judicature at Rajasthan, Bench at Jaipur, whereby Special Appeal Writ No. 610 of 2021 has been allowed and the Judgment of the learned Single Judge as well as the Award passed by the Labour Court in favour of the appellant have been set aside.
14. The facts may be noticed briefly.
15. The appellant was engaged as a Class-IV employee under Sub-Divisional Officer, Mundawar and Collector, Alwar, i.e., Respondent Nos. 1 and 2 on 22-01-1997. His services were terminated on 01-04-2001 without complying with the provisions of the Industrial Dispute Act, 1947.
16. The appellant raised an industrial dispute against his retrenchment. Other similarly placed retrenched workmen of the same department also raised industrial disputes and all such matters were referred to Labour Court for adjudication. Learned Labour Court passed a common award holding that there was violation of Section 25F of the 1947 Act. Consequently, the appellant and one Shyoram Singh were ordered to be reinstated in service with 50% back-wages. The other workmen were reinstated with 25% back-wages.
17. The Respondent – Authorities challenged the award of the Labour Court before the High Court which was allowed in part to the extent that in some of the cases, a learned Single Judge set aside the grant of 25% back-wages. All these matters were then taken up in appeal and have been disposed of by the Division Bench of the High Court vide impugned Judgment dated 18-11-2021. While the Division Bench has upheld the Orders of the Labour Court and learned Single Judge in case of other workmen, the appellant alone has been singled out and his claim has been rejected on the ground that he had earlier filed Writ Petition No. 711 of 1998 before the High Court which was dismissed by the learned Single Judge vide Judgment dated 23-11-2001 and a Writ Appeal against the same was also turned down by the Division Bench on 23-03-2006. It was, thus, held that the appellant having lost the claim before the High Court, could not have raised an ‘industrial dispute’ and secure the Order of reinstatement with 50% back-wages. The High Court was of the view that the Judgment in the previous round of litigation had attained finality, hence no relief could be granted to the appellant, his claim being barred by the principle of res-judicata.
18. We have heard learned counsel for the parties and gone through the material placed on record. There can indeed be no doubt that if an employee has lost his claim in the High Court under the writ jurisdiction, he cannot re-agitate the same claim before the Labour Court unless so expressly permitted by the High Court. No such permission was undoubtedly granted to the appellant by the High Court in the instant case vide judgments dated 23.11.2001 or dated 23.03.2006.
19. It is, however, pertinent at this stage to recapitulate the facts again.
20. The appellant was admittedly engaged in the same manner as the other workmen, on 22-01-1997. He filed the Writ Petition No. 711 of 1998 while in service apparently seeking for continuation of employment and/or regularization of his services.
21. During pendency of the said Writ Petition, the appellant was retrenched and his services were terminated on 01-04-2001.
22. It is not in dispute that the appellant did not avail one of the options to amend the Writ Petition and lay challenge to the order of termination before the High Court. As noticed earlier, the appellant’s Writ Petition was dismissed on 23-11-2001 and the Writ Appeal also met with the same fate on 23-03-2006.
23. It may, thus, be seen that the Order of termination of services dated 01-04-2001 which was an event subsequent to the filing of the Writ Petition, was not the subject matter of adjudication before the High Court.
24. It is also undeniable that ‘industrial dispute’ raised by the appellant which was referred to Labour Court for adjudication confined only to the validity of the order of termination dated 01-04-2001. In other words, the nature of lis and the cause of action before the Labour Court was different than what was agitated before the High Court in Writ Petition No. 711 of 1998 or in the Writ Appeal dismissed on 23-03-2006.
25. It is pertinent to mention that the High Court vide a subsequent Order dated 22-09-2006 passed in Civil Writ Petition No. 2739/2001 filed by the appellant specifically ordered as follows:—
“xxx xxx xxx
By way of these writ petitions, the petitioners prayed regularization of their services. During the pendency of the writ petition, the services of the petitioners have been terminated.
In such circumstances, the question of regularization does not arise. However, the petitioners are at liberty to redress their grievances before appropriate forum.
xxx xxx xxx”
26. It goes without saying that the orders of the High Court passed in writ jurisdiction/writ appeal must be given precedence and full effect. Consequently, the appellant will not be entitled to claim regularization of his services as such a relief has been denied to him by the High Court. Nevertheless, denial of such relief will not preclude the appellant from questioning the order of termination of his services dated 01-04-2001 by resorting to a recourse permissible in law. The appellant, thus, was well within his right to challenge the termination order dated 01-04-2001 before the Labour Court by raising an industrial dispute.
27. It is a matter of record that the Labour Court, like in the case of appellant’s co-workmen, has held that the appellant was retrenched without complying with Section 25F of the Industrial Dispute Act. No fault, thus, can be found with the Order of the Labour Court in directing reinstatement of the appellant with all consequential benefits (except the back wages).
28. It is pertinent to mention that the Division Bench of the High Court fell in a factual error in observing that the claim of the appellant was barred by res judicata. It is apparent that the learned Single Judge vide subsequent Order dated 22-09-2006 had relegated the appellant to seek redressal of his grievance before an appropriate forum. The only appropriate forum to challenge the order of termination of services was by raising an ‘industrial dispute’ before the Labour Court. The appellant did adopt such recourse successfully.
29. In light of the above discussion, it appears to us that the appellant like his co-workmen, is entitled to reinstatement of services with all consequential benefits (except the back-wages). However, the appellant will not be entitled to claim regularization of his services as a matter of right though nothing precludes the respondent – authorities to grant such relief to him in terms of their policy decisions. Similarly, the appellant shall be at liberty to approach the High Court, in case the services of similarly placed workmen are regularized, as it will give rise to a fresh cause of action in his favour.
30. The appellant-workman, however, shall be granted notional pay fixation without any arrears of pay on such fixation, in addition to continuity of service and other consequential benefits except the back wages.
31. The appeal is disposed of, in above terms.
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