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Judgment
R.H. Zaidi, J.—The Petitioner by means of instant petition filed under Article 226 of the Constitution of India prays for a writ, order or direction in the nature of certiorari quashing the award of the labour court dated 28.2.1995 notified on 15.6.1995 and set out, in Annexure 5 to the writ petition.
The facts of the case, in brief as have been stated in the writ petition, are that Northern Central Zone Cultural Centre, Allahabad, the Petitioner is a society registered under the Societies Registration Act, 1860 (for short hereinafter referred to as the Society). The Society was established for preserving, promoting and developing the art and culture of North Zone under the guidance of the Central Government. Respondent No. 2, Sri Anoop Behari Lai Srivastava was engaged for looking after the cases of the Society pending in various courts on daily wage basis. From 1.9.1990, the said Respondent ceased to discharge his duties and abandoned the job. On the behest of the said Respondent, the State Government u/s 4K of the U.P. Industrial Disputes Act, (hereinafter referred to as the Act), made a reference to decide the question as to whether the employer''s act of terminating the services of Sri An up Behari Lal Srivastava as Upper Division Clerk w.e.f. 26.12.1990 was proper and legal and if not, to what compensation/relief the workman was entitled from the employer.
Before the labour court, Respondent No. 2 filed his written statement and claimed that he was appointed as Upper Division Clerk on 20.3.1988 on daily wage basis @ Rs. 50 per day. He was required to do pairvi of the cases, make purchases of goods of the Society, maintain bills submitted by the contractors and to per for in other jobs. After working for about 2 years in the aforesaid capacity, he applied for leave as he wanted to appear in Civil Services Examination, 1990. Leave was granted to him from 1.9.1990 to 10.11.1990 but since the examination could not be held and was postponed, he had to apply for leave again, twice. After appearing in the aforesaid examination when he reported for duty on 26.12.1990, he was not permitted to join. On 3.1.1991, the Director of the Society told him that his services stood terminal. Respondent No. 2 claimed that the termination of his services was wholly illegal and in violation of provisions of Section 6H of the Act.
Similarly the Petitioner also filed written statement pleading that Respondent No. 2 was never appointed as Upper Division Clerk. He was appointed as a Daily Wager only to look after the cases of the Society pending In different courts, that he has himself abandoned the service of the Society and that reference made to the Labour Court was Incompetent. .
In support of their respective cases, the parties produced oral and documentary evidence.
It would not be out of place to state that before making an application for reference u/s 4K of the Act, the Respondent No. 2 filed Civil Misc. Writ Petition No. 1745 of 1991 challenging the validity of termination of his services in this Court. The Petitioner in the said writ petition raised an objection that writ petition filed by the said Respondent was not maintainable on the ground of alternative remedy available to him u/s 4K of the Act. The said objection was upheld by this Court and the writ petition was dismissed on the ground of availability of the alternative remedy. Order dismissing the writ petition became final.
It is also pertinent to state that by means of writ petition No. 23708 of 1992, the Petitioner challenged the validity of order of reference and prayed for quashing the proceedings of the case pending before the labour court, contending that the reference made by the State Government u/s 4(K) of the Act was not maintainable. This Court by its order dated 22.9.1993 was pleased to dismiss the said writ petition holding that it was not open to the Petitioner to challenge the maintainability of the reference and further that challenge to the maintainability of the reference was nothing but just an unbecoming device of the part of the employer to avoid the decision of the industrial dispute on merit. The judgment and order passed by this Court dated 22.12.1993 dismissing the writ petition filed by the Petitioner has also become final.
The labour court after hearing the parties and going through (he records of the case was pleased to hold that Respondent No. 2 was appointed to do pairvi of the cases against the Society and to perform other jobs and duties which were clerical in nature, that abandonment of service by Respondent No. 2 as pleaded by the Petitioner was not proved and that he was working from 1987 to August, 1990 continuously and put in more than 240 days continuous service before his services were terminated. He was, therefore, entitled to the relief claimed. The labour court has recorded the said findings which are based on the relevant evidence on the record of the case and gave award in favour of Respondent No. 2 and also decided Misc. Case No. 62 of 1992 in his favour, partly, by its judgment and orders dated 28.2.1995. This petition as stated above has been filed against the said order/award of the labour court.
Since affidavits have been exchanged between the parties, therefore, as desired by them I have heard the learned Counsel for the parties finally and have also carefully gone through the record of the case.
The learned Counsel for the Petitioner has urged that the reference made by the State Government u/s 4(A) of the Act was legally not maintainable inasmuch as the Petitioner was simply a society and not an Industry and that Section 4K of the Act was not applicable in the present case. The learned Counsel for the Petitioner has also contended that Respondent No. 2 was never appointed as Upper Division Clerk but only on daily wage basis at the rate of Rs. 50 per day, therefore, he could not be treated as workmen within the definition of the term used under the Act. The learned Counsel further submitted that Section 6N of the Industrial Disputes Act had no application in the present case as the service of Respondent No. 2 could not be said to be continuous service. The learned Counsel for the Petitioner further urged that Respondent No. 2 himself abandoned the job and his service automatically came to an end, therefore, there was no question of any notice of termination and payment of compensation to him.
On the oilier hand, the learned Counsel appearing for Respondent No. 2 has contended that the reference made by the Government u/s 4K was legally maintainable and it was not open to the Petitioner at this stage to challenge the validity and maintainability of the reference. He further submitted that Respondent No. 2 was appointed as Upper Division Clerk and the finding recorded on this question is a finding of fact based on relevant evidence which could not be challenged under Article 226 of the Constitution of India. The learned Counsel for the Respondents further contended that Section 6N of the Act was fully applicable in the case and that without following the procedure prescribed under the law, it was not open to the Petitioner to terminate the services of the Petitioner.
I have given my anxious consideration to the arguments of the learned Counsel for the parties. In my opinion, none of the contentions raised by the learned Counsel for the Petitioner has got any substance.
So far as the maintainability of the reference is concerned, It would suffice to say that, in Civil Misc. Writ Petition No. 1754 of 1991 filed by Respondent No. 2, the Petitioner raised a preliminary objection regarding the maintainability of the writ petition on the ground that the said writ petition was not maintainable in view of the availability of the alternative remedy u/s 4K of the Act. The said writ petition was dismissed by this Court, upholding preliminary objection raised by the Petitioner. In writ petition No. 23708 of 1992 Northern Central Zone Cultural Centre. Allahabad v. State of U.P. and Ors., the Petitioner challenged the maintainability of the reference. This Court was pleased to hold that the reference made by State Government u/s 4K was legally maintainable and that it was not open to the Petitioner to challenge the validity and maintainability of the reference and was pleased to dismiss the writ petition by its judgment and order dated 20.2.1993.
It is well settled in law that no party can be permitted to blow hot and cold in the same breath. The Petitioner Is thus estopped from contending that the reference made by the State Government u/s 4K of the Act was not maintainable. Further the orders passed in the two writ petitions referred to above have become final between the parties and operate as res Judicata. It is well settled in law that the principles of res judicata also apply by stages. The contention of the learned Counsel for the Petitioner regarding the maintainability of the reference is, therefore, not acceptable to me.
So far as the status of the Respondent No. 2 is concerned, the Labour Tribunal after going through the evidence on record has recorded a clear and categorical finding to the effect that Respondent No. 2 was appointed to do pairing of the cases of the Society as well as to perform other duties and jobs which were of clerical nature. The said is a finding of fact which is based on perusal of relevant evidence on record. Under Article 226 of the Constitution of India, it is not open to the Petitioner to challenge the said finding as this Court neither can re appraise the evidence near can substitute its own finding on the question of fact.
In view of the findings recorded by the Respondent No. 1 on the questions of fact referred to above, the provisions of the Act were fully applicable in the present case.
The Respondent No. 1 has also held that the Petitioner had failed to prove its case that Respondent No. 2 has abandoned the job and his services automatically came to an end. It was, therefore, obligatory on the Petitioner to follow the procedure prescribed under the Act for termination of service, in the event the services of Respondent No. 2 were required to be terminated. The procedure prescribed under the Act for termination of service having admittedly not being following in the present case, the Respondent No. 1, therefore, was justified In upholding the claim of Respondent and deciding the case in his favour.
In view of the discussion made above, the order passed by Respondent No. 1 does not suffer from any manifest error of law. The writ petition lacks merit and deserves to be dismissed.
The writ petition fails and is dismissed in limine, but without any order as to costs.