Bhagwant Singh vs Industrial Tribunal

G.S. Sandhawalia, J.

Civil Misc. No. 4535 of 2014

Prayer made in this Civil Misc. Application for granting exemption from filing certified copies of Annexures P/2 and P/3 and to allow filing true translated copies of the same is allowed.

The Civil Misc. Application stands disposed of accordingly.

Civil Misc. No. 4536 of 2014

Prayer made in this Civil Misc. Application for placing on record the application for claim and reply thereto as Annexures P/2 and P/3 is allowed. Annexures P/2 and P/3 are taken on record.

Office to tag the same at appropriate place in the file.

The Civil Misc. Application stands disposed of accordingly.

Civil Writ Petition No. 18524 of 2013.

The challenge in the present writ petition is to the order dated 12.10.2012 (Annexure P/1) whereby application filed by the petitioner-workman u/s 33C(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") has been dismissed. The claim of the petitioner in the application was that a sum of Rs. 46370.55 had been recovered from his retiral dues on account of less output rendered by him. He also claimed his right of entitlement regarding leave encashment to the tune of Rs. 13471 which was paid on 31.3.2002 instead of 1.1.1997 and interest on the said amount. Interest was also claimed on the amount of Rs. 5585 paid on 31.10.2002 instead of 1.1.1995. Thus, a sum of Rs. 1,15,923.43 was claimed which was inclusive of further interest.

In the written statement filed, the said claim was contested on the ground that the petitioner-workman had retired on 31.12.1994 and recovery was ordered against him which has been challenged in the Civil Suit and the petitioner was unsuccessful and then he had filed an appeal before the Addl. District Judge, Patiala which had also been dismissed. The recovery was thus as per rules. The amount of Rs. 13471 was paid which was not due to the petitioner on 1.1.1997 and only became liable to be paid due to the decision of this Court on 17.8.2001 whereby his plea for extension of service period being son of freedom fighter was decided and thus, there was no delay. The amount of Rs. 5587 regarding eight years of proficiency step up was also released to him on 23.8.2002 after deducting the due amount of Rs. 46370.55 from the amount of gratuity.

The Labour Court noticed that two suits had been filed challenging the issue of recovery and in both the Civil Suits and the petitioner was unsuccessful and accordingly, the judgment of the Hon''ble Apex Court in Rajasthan State Road Transport Corporation and Another Vs. Khadarmal, relied upon by the workman was distinguished and it was held that the application was barred by res-judicata and the recovery was rightly effected.

Counsel for the petitioner has very vehemently submitted that once the Hon''ble Apex Court in Khadarmal''s case (supra) has held that the Industrial Tribunal would have jurisdiction and the Civil Court would have not jurisdiction, the Tribunal should have decided the issue without being prejudiced by the earlier decisions.

After hearing counsel for the petitioner, this Court is of the opinion that there is no substance in the argument raised. The principle of election comes in the way of the petitioner. A Full Bench of this Court in Sukhi Ram v. State of Haryana, 1982 (1) SLR 663 has held that it is the discretion of the workman to resort to one of the remedies and he has option to seek his remedies under the Act or to elect his remedy under the common law and he cannot choose both.

The Full Bench in Sukhi Ram''s case (supra) formulated the following legal question after taking into consideration the binding precedent of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, :--

Whether the Civil Court has jurisdiction to entertain a suit filed by a workman in connection with an industrial dispute if no steps had been earlier taken by him to have the same referred u/s 10 of the Industrial Disputes Act to a Labour Court or the Tribunal.

The conclusion arrived was that the Civil Court would have jurisdiction to entertain a suit in connection with industrial dispute arising out of the right or liability under the general or the common law, if no steps have been earlier taken to resort to the other remedy. However, it was specifically held that the workman must elect his remedy and he could not have both. The relevant observations read as under:--

Coming now to the second distinct category where the right or obligation giving rise to the industrial dispute springs from a source other than the Act-that is, under the general law (including therein any other statutes) then under principle, (2) the workman is expressly given two alternatives remedies. In such a case, it is in his discretion to either make resort to the ordinary jurisdiction of the civil Courts or to seek the remedies under the Act. However, he must distinctly elect his remedy. It is now authoritatively settled that he cannot have both. He is to choose one or the other.

A Division Bench of this Court, in Punjab Agro Industries Corporation Ltd. Vs. The Presiding Officer, Labour Court, Union Territory and Another, , following the said view, also noticed that once the workman had chosen to avail remedy, he could not resort to the other as the judgment of the Civil Court would operate as res-judicata in the proceedings before the Labour Court u/s 10 of the Act. The demand notice in the said case was also issued after six years of delay and it was held that the State. Government could have declined the reference to the Labour Court on this ground also when there is such a long delay.

The observations of the Division Bench of this Court in Punjab Agro Industries Corp. Ltd.''s case (supra) read as under:--

Learned counsel for the contesting respondent has argued that in the civil suit the respondent No. 2 did not challenge the order of dismissal and his suit was merely based on the plea that after one year of suspension order; he was entitled to reinstatement and, thus, respondent No. 2 had an independent right of getting the matter adjudicated before the Labour Court u/s 10 of the industrial Disputes Act with respect to termination of his services. This contention cannot be accepted because the order of dismissal was passed on June 15, 1982, whereas the civil suit was filed on October 14, 1983. It was open to respondent No. 2 to challenge the order of dismissal in the aforesaid suit and if he gave up the aforesaid plea, he could not subsequently challenge the same by filing a fresh suit in view of the bar contained under Order II, rule 2 of the Code of Civil Procedure. If he was barred from raising such a plea in the subsequent suit, obviously he could not be permitted under the law to raise such a plea before the Labour Court to challenge the order of his termination. The principles of natural justice also require that the parties should not be left in dark and allowed to continue litigation for all times to come. There has to be end of the litigation with respect to a particular case at some stage, which is the basic principle enshrined u/s 11 of the CPC and such principle constructively would apply to different forums for claiming such reliefs. The judgment of the Civil Court, thus, would operate as res judicata in proceedings before the Labour Court u/s 10 of the Industrial Disputes Act. The Labour Court was not correct in law in coming to the conclusion that Civil Court''s judgment would have no effect on the powers of the Labour Court to determine the lis. No doubt, when reference is made u/s 10 of the Industrial Disputes Act, the Labour Court could not decline to answer the same. However, by applying the principle of res judicata, the Labour court could not hold that no relief was to be allowed, applying principles of constructive res judicata to the present representation.

Thus once the petitioner has been unsuccessful in Civil Court and chose not to file an appeal against the order of the Addl. District Judge, Patiala, he could not have filed the application u/s 33C(2) by taking recourse under the Act. Regarding the issue of leave encashment it is but to be noticed that certain benefits have been granted by virtue of order dated 17.8.2001 of this Court whereby the petitioner had been granted two years additional service being son of freedom fighter and thus, there was no cause of action which arose to the petitioner to agitate the issue. The argument that the petitioner was a layman and therefore, he should not suffer on account of mistake of his counsel cannot be accepted. Ignorance of law is not an excuse which can be raised before the Court and once the case has been decided on merits. Thus, keeping in view the above settled position of law and on account of the fact that the petitioner had opted for one of his remedies, it would not be open for him to reagitate the issue afresh before any other Forum. Resultantly, this Court is of the opinion that there is no merit in the present writ petition and the same is dismissed in limine.