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Judgment
Y. Bhaskara Rao, J.—Both the appeals are preferred assailing the judgment of the learned single judge in W.P. No. 14273 of 1990 to the extent they are against the appellants. The parties are referred to as arrayed in the writ petition for the sake of convenience.
The writ petitioner entered into the service of the Life Insurance Corporation of India in the year 1967 as assistant. On January 2, 1976 he was served with a charge-sheet since he was unauthorisedly absent from duties for the period from October 2, 1974 for which the petitioner submitted his explanation on January 16, 1975. An Enquiry Officer was appointed who after conducting enquiry submitted a report observing that the petitioner misconducted himself by his unauthorised absence and accordingly an order of removal was passed on July 30, 1995. Aggrieved by the same, the petitioner agitated before the Department by filing several representations till 1986 when he approached this Court by way of a writ petition in W.P. No. 11157 of 1986, since no relief was granted by the Department. The said writ petition was dismissed on July 24, 1987 on the ground of laches. The said order was upheld by a Division Bench of this Court on September 15, 1987 in W.A. No. 1181 of 1987, against which the petitioner approached the Supreme Court in SLP No. 16056 of 1987. The SLP was also dismissed at the admission stage on February 4, 1988. Thereafter, the petitioner approached the Government to make a reference under Industrial Disputes Act and accordingly the Government of India referred the matter in I.D. No. 82 of 1989. The Tribunal adjudicated the matter on merits and passed an award dt. August 10, 1990 answering the reference against the petitioner. The petitioner therefore filed W.P. No. 14273 of 1990 before this Court. The learned single Judge observed that in-so-far as the aspect regarding laches is concerned the same was not challenged by the management by way of a writ petition immediately after the reference was made by the Central Government to the Labour Court and held that the laches cannot be a bar for exercising jurisdiction of this Court under Article 226 of the Constitution of India. The learned Judge further held that the earlier writ petition was dismissed on the ground of laches and it was not adjudicated on merits and non-exercise of writ jurisdiction on the ground of laches cannot be a bar for invocation of the effective remedy and accordingly rejected the plea of res judicata. The learned Judge whole observing that charges 3 and 5 are proved, reduced the punishment of removal from service since there was no serious misconduct and held that the petitioner was entitled to reinstatement from November 1, 1994 with continuity of service but without back-wages and other benefits. Aggrieved by the said judgment, the above writ appeals are preferred to the extent they are against the appellants.
Sri Adinarayana Raju, the learned counsel appearing for the Management contended that the earlier W.P. No. 11857 of 1986 was dismissed after hearing the petitioner at length by holding that it was devoid of merits but not simply on the ground of laches and hence the learned Judge while disposing of W.P. No. 14273 of 1990 erred in holding that the earlier writ petition was dismissed only on the grounds of laches. It was further contended that there was inordinate delay of more than 14 years in referring the matter to the Industrial Tribunal and consequently the reference is invalid, that the earlier judgment operates as res judicata since it was disposed of on merits, that the learned Judge erred in holding that charges 1, 2 and 4 are not proved and that the decision of the Industrial Tribunal confirming the order of removal ought to have been upheld. The learned counsel appearing for the writ petitioner, Sri Siva Reddy contends that the enquiry was not properly conducted following the procedure prescribed and since the copy of the enquiry report was not furnished to the petitioner, the impugned order is vitiated; that the learned Judge has not considered the fact that no charge is framed against the petitioner for his absence from October 1, 1994 and accordingly committed an error in not granting full relief by awarding backwages and that the reference made u/s 10 of I.D. Act is only an administrative act and the Labour Court has no power to deal with it and decide whether the same is maintainable or not.
In view of the rival contentions, the points that arise for consideration are -
i) Whether the present writ petition is hit by laches ?
ii) Whether the judgment in the earlier writ petition which is confirmed by a Division Bench of this Court and the Supreme Court operates as res judicata ? and
iii) Whether the petitioner is entitled for backwages ?
The petitioner was removed from service in the year 1975 and it is his case that he agitated before the Department by filing several representations and finally in the year 1986 he filed W.P. No. 11157 of 1987 before this Court when his representations were lying before the authorities pending consideration. The learned single Judge after hearing both the parties found that there are no merits in the writ petition and that the same is bit by laches. The learned Judge further observed that there was inordinate delay in invoking jurisdiction under Article 226 of the Constitution and accordingly dismissed the writ petition. We have gone through the order in the said writ petition. The learned Judge extracted the charges and other details but there is no specific finding regarding merits except stating that there are no merits in the writ petition. In other words, there is no specific finding whether the charges levelled against the petitioner are proved or not and also as regards the laches. The W.A. No. 1181 of 1987 preferred against the order in the writ petition was dismissed at the admission stage by a Division Bench of this Court holding thus :
"The writ petition was dismissed on the ground of laches. The laches pertain to eleven years. Therefore, we see no reason to interfere with the order under appeal. Writ appeal is, therefore, dismissed."
The S.P.L preferred against the said order was also dismissed by holding thus :
"Delay condoned. The SLP is dismissed."
A reading of the orders passed in the writ petition, writ appeal and SLP clearly show that the said orders are not passed on merits.
As regards the contention that there was abnormal delay in seeking reference to the Government u/s 10 of the I.D. Act the learned Counsel appearing for the Management relying on the decision in Inder Singh & Sons Ltd. v. Their Workmen (1961 II LLJ 89) (SC) and Shalimar Works Limited Vs. Their Workmen, submits that though there is no limitation prescribed for reference of disputes to Industrial Tribunal, it is reasonable that disputes should be referred as soon as possible after they have arisen particularly so when the disputes relate to discharge of workmen, taking into account the fact that there will be some effect on the employer''s financial arrangements. It is to be noticed here that the petitioner agitated his claims before the Department till 1986 before the authorities and thereafter before the Courts till the SLP is dismissed as cited above and then sought for the reference. Since the petitioner is pursuing his remedy constantly, it cannot be said that there are laches and the writ petition cannot be thrown out on that ground. Thus, the decisions cited above do not relate to the facts of this case. Further, after reference is sought, the same is not challenged by way of a writ petition on the ground of laches by the Management and the reference was entertained and disposed of on merits and at a later stage it cannot be said that the relief sought for by the petitioner should be refused on the ground of laches.
As regards the res judicata aspect is concerned, the learned Counsel for the petitioner relying on decision in Pujari Bai Vs. Madan Gopal, ; Sheodan Singh Vs. Smt. Daryao Kunwar, ; Avatar Singh v. State of J & K AIR 1985 SC 81; Mukhtiar Singh v. State of Punjab 1995 (1) SCC 761 and P.D. Sharma Vs. State Bank of India, submits that the judgment passed in the earlier writ petition i.e. W.P. No. 11157/87 is not a speaking order, in other words, no reasons for arriving at the conclusions that the order of removal is justified are given and that the judgment dismissed on the ground of laches is not sustainable and hence the said order does not operate as res judicata. The learned Counsel appearing for the Management on the other hand contended that the earlier writ petition and the consequent writ appeal and SLP were decided on merits and hence the present writ petition, i.e. W.P. No. 14273 of 1990 is liable to be dismissed as the judgment in the earlier writ petition operates as res judicata. In support of his contentions he relied upon decisions in Bharat Barrel & Drum Manufacturers v. Employees Union 1987 Lab IC 1005 and Ram Parkash Sharma Vs. State of Haryana, wherein it was held that the question which has already been decided cannot be reagitated and that if any judgment or order in a particular issue has been strictly and implicitly decided, the decision operates as res judicata. As we have observed supra the judgment in the earlier writ petition was not passed giving specific finding and cogent reasons for confirming the removal order and it cannot be said the same operates as res judicata.
The learned Counsel for the Management contended that when the Tribunaal fails to exercise its discretion u/s 11A of the I.D. Act, generally, the High Court will not interfere as to whether the discretionary power was exercised or not while exercising its power under Article 226 of the Constitution. The Tribunal after considering the entire evidence on record and after giving cogent reasons observed that the removal of the petitioner from service is proper but did not express in so many words by referring to Section 11A of the Act. It is to be noticed that even if the Industrial Tribunal does not consider specifically whether the punishment imposed is proportionate or not, the High Court is not barred to scrutinise the said fact while exercising its discretion under Article 226 of the Constitution.
As regards the plea that no charge is framed for the absence of the petitioner from October 1, 1974, it is clear from a perusal of the charge No. 2 extracted in the removal order that the petitioner sought for extension of the leave from October 2, 1974 from which it is clear that the petitioner might have applied for leave for the earlier period. In-so-far as plea of the petitioner that the entire enquiry is vitiated since no enquiry report is supplied to him is concerned, the learned single Judge has rightly held in the present writ petition that same cannot be agitated since it was not challenged before the Tribunal.
For the foregoing reasons and for the reason that there is no serious misconduct of misappropriation or insubordination, we are of the considered view that the harshest punishment of removal is uncalled for. Hence, we are of the opinion that the judgment of the learned single Judge in W.P. 14273/90 holding that the charges 3 and 5 are proved after giving cogent and convincing reasons, does not warrant interference. Accordingly, the same is confirmed. In the circumstances, as rightly held by the learned single Judge, the petitioner is entitled for reinstatement from November 1, 1994 with continuity of service but without backwages. We make it clear that the continuity of service is only for the purpose of payment of increments only.
The writ appeals are accordingly dismissed. No costs.