Director State Transport, Punjab, Chandigarh and Another vs Gulzar Singh and Another

Satish Kumar Mittal, J.—The State of Punjab and another (hereinafter referred to as ''the management'') has filed the present writ petition challenging the award dated 9.1.2001 (Annexure P-3) passed by the Presiding Officer, Labour Court, Bathinda, whereby the termination of services of the respondent workman was held to be illegal and he was ordered to be reinstated with continuity of service but without back wages. The brief facts of the case are that the respondent workman was employed on temporary basis as Conductor in the Punjab Roadways. On 22.3.1986 his bus was checked and it was found that five passengers were travelling without ticket. Those passengers had paid the fare but the respondent workman did not issue any ticket. For the said misconduct, a regular departmental enquiry was conducted. The workman was provided full opportunity to defend himself. In the said enquiry he was found guilty of the alleged misconduct and ultimately after issuing show cause notice to him and providing personal hearing, he was terminated from service vide order dated 2.4.1987.

The respondent workman instead of raising the industrial dispute challenged his termination by filing a civil suit claiming that his termination was contrary to Punjab Civil Services (Punishment and Appeal) Rules, 1970 as well as Article 311 of the Constitution of India. The said suit was contested by the petitioners on merits. Ultimately, after considering the evidence led by both the parties, the trial Court dismissed the said suit and upheld the order of termination vide judgment and decree dated 9.11.1989 (Annexure P-1) (copy of the same was placed before the Labour Court vide Ex. M/1 and M/2). Feeling aggrieved against the said judgment and decree, the respondent workman filed an appeal before the Additional District Judge, Ferozepur. The same was also dismissed vide judgment and decree dated 29.7.1992 (Annexure P-2) (copy of the same was placed before the Labour Court vide Ex. M/3 and M/4).

After the decision of the Civil Court, the respondent workman issued demand notice on 7.1.1996 raising the industrial dispute that his services were illegally terminated by the management. The said dispute was referred by the appropriate Government for adjudication to the Labour Court vide reference dated 6.1.1998 u/s 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act'').

Before the Labour Court the petitioners raised the preliminary objections that the respondent workman had already availed the remedy in Civil Court and the civil suit filed by him challenging his termination to be illegal had already been dismissed on merits. The appeal filed against the said judgment and decree had also been dismissed. The finding recorded by the Civil Court about validity of the termination order has become final, and the said finding recorded by the Civil Court upholding the termination to be valid shall operate as res judicata against the workman and the reference made by the Government was liable to be dismissed. In this regard, the Labour Court framed issue No. 2 "whether the reference is barred by principle of res judicata? If so, its effect? (OPM)". The Labour Court while relying upon the Single Bench decision of this Court in General Manager Punjab Roadways and Another Vs. Sh. Dharam Singh and Another, decided the said preliminary issue in favour of the workman and held that the judgment and decree of the Civil Court shall not operate as res judicata against the workman and the delay in seeking the reference will not come in the way of the workman. It has been further held that since the management except tendering certified copies of judgment and decree regarding termination of workman, did not lead any other evidence, the workman was ordered to be reinstated with continuity of service but without back wages vide award dated 9.1.2001. The said award is under challenge in the present writ petition.

Learned counsel for the petitioners while referring to a Full Bench decision of this Court in Sukhi Ram Vs. State of Haryana, and a Division Bench decision of this Court in Ashok Kumar v. Presiding Officer, Labour Court, Jalandhar and others, 2001 (1) S.C.T. 197 has argued that in the present case the workman himself had elected the remedy of civil suit and after the decision of the said civil suit he cannot get the industrial dispute adjudicated under the Act. Hence the Labour Court has committed a grave illegality while holding the termination of services of the respondent workman contrary to the Civil Court judgment and decree which is binding on the respondent workman.

On the other hand, learned counsel for the respondent workman, while relying upon a Single Bench judgment of this Court in General Manager, Punjab Roadways, Amritsar-I and another (supra) has argued Section 9 of the CPC impliedly barred the jurisdiction of the Civil Court to entertain an industrial dispute. Therefore, the judgments and decrees passed by the Civil Court are without jurisdiction and liable to be ignored, and as such, the Labour Court has rightly entertained the reference and ignored those judgments and decree, and held the termination of services of the workman as illegal and ordered for his reinstatement but without back wages. Thus the impugned award passed by the Labour Court does not require any interference.

I have considered the submissions made by the learned counsel for the parties.

In The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, the Hon''ble Supreme Court in para 23 of the said judgment has laid down the following principles applicable to the jurisdiction of the Civil Court in relation to an industrial dispute:-

(1) If the dispute is not an industrial dispute nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter VA then the only remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.

It has been further held that in relation to the second principle if the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, then the workman has the remedy of Civil Court also as well as before the Labour Court and he is free to choose his remedy.

In the present case, the workman in his civil suit had challenged his termination on the ground that no proper enquiry was held and without giving him an opportunity of hearing the order of punishment was passed in violation of the provisions of Punjab Civil Services (Punishment and Appeal) Rules, 1970. Therefore, the order of removal from service passed by the General Manager was liable to be set aside being illegal. In the civil suit, it was no where pleaded that while terminating the services of the respondent-workman the petitioners violated any provisions of the Act. Therefore, it cannot be said that the dispute raised by the respondent-workman before the Civil Court was to enforce the right and liability under the Act. The dispute in the civil suit was with regard to enforcement of his right and liability under the general and common law of the Act. Therefore, it cannot be said that the jurisdiction of the Civil Court was barred and the judgment and decree passed by it are liable to be ignored on that ground.

The Full Bench of this Court in Sukhi Ram''s case (supra) has considered the similar questions raised by the workman, who was also working as Conductor in the Haryana Roadways and his services were terminated and upheld by the Civil Court. In the said judgment, it has been held as under:-

If the right or liability flows from the Act itself then the remedy, therefore, would also lie within the procedural provisions of the same statute alone. 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 the workman is expressly given two alternative 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. In the present case it is the common case that the dismissal or removal of workmen here raises dispute arising out of the rights or liabilities under the general or common law. There is no dispute here that the workmen have not even remotely resorted to any of the remedies under the Industrial Disputes Act. No industrial dispute was sought to be raised on their behalf nor any reference claimed u/s 10 of the Act. They had straight-away made their election and chosen to agitate their rights in the civil courts. Both on principle and binding precedent, therefore, they would be clearly entitled to claim relief by way of a civil suit.

When a similar controversy came up for consideration before the learned Single Judge in General Manager, Punjab Roadways, Amritsar-I and another v. Dharam Singh and another (supra) the Full Bench judgment of this Court in Sukhi Ram''s case (supra) was not brought to the notice of the Court and in absence thereof it was held that the principle of res judicata as embodied in Section 11 of the CPC which provides that the decision of a Civil Court will be binding in a subsequent suit/proceeding if the Civil Court is competent to try the latter suit or proceeding initiated subsequently, will not apply. It has been further held that the Civil Court has no jurisdiction to decide an industrial dispute and the decision given by the Civil Court was not binding on the Labour Court and the same does not operate as res judicata. Later on, when the similar controversy came up for consideration before this Court in Ashok Kumar''s case (supra) the judgment in General Manager, Punjab Roadways, Amritsar-I and another v. Dharam Singh and another (supra) was cited. The learned Division Bench while discussing the said judgment has held as under:-

This then takes us to the question of the effect of the judgment in civil suit on the rights of the workman before the Labour Court. Counsel for the petitioner has relied on the judgment in C.W.P. 16214 of 1994 : 1996 (3) SCT 225 (P & H) titled General Manager, Punjab Roadways and another v. Dharam Singh and another. It is a judgment of learned Single Judge of this Court in which he has held that the decree and judgment of the civil Court are not binding on the Labour Court and the same does not operate as res judicata. The reason for coming to this conclusion according to learned Single Judge is that the jurisdiction of the civil Court is excluded to try such a suit and the civil Court has no jurisdiction to grant a declaration that the order of termination is bad as the dispute relates to an industrial dispute. As against this, there is a judgment in the case of Sukhi Ram Vs. State of Haryana, It is a judgment of Full Bench of this Court in which it has been laid down that dispute in connection with an industrial dispute arising out of the right or liability under the general or the common law, the worker has got two alternative remedies available to him, (i) to go to civil Court, and (ii) under the Industrial Disputes Act. It is further held that the worker must distinctly elect one of his remedies and he cannot avail of both the remedies. It is further held that the civil Court has got the jurisdiction to entertain a suit falling in second category. The Full Bench has referred to the case of The Premier Automobiles Limited Vs. Kamlakar Shantaram Wadke, It has been held therein that if the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is an alternative remedy, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular case.

In the said case, it has been held that once the terminated employee has chosen a remedy before the Civil Court and got it decided, then he is debarred from approaching the Labour Court by raising the industrial dispute under the Act. Further, it has been held by the Full Bench of this Court in Sukhi Ram''s case (supra) that the Civil Court has jurisdiction to entertain a suit by a workman in connection with an industrial dispute arising out of the right or liability under the general or the common law (and not under the Act), if no steps had been earlier taken by him to resort to the remedy under the Act. In the present case, the workman has resorted to the ordinary jurisdiction of the civil court by raising the dispute arising out of the rights or liabilities under the general or the common law. In view of the aforesaid legal position, the impugned award passed by the Labour Court is not sustainable as the findings recorded by the Civil Court vide judgment and decree are binding on the respondent workman and after exhausting his remedy before the Civil Court, he cannot avail the alternative remedy under the Act. Hence, the writ petition is allowed and the impugned award dated 9.1.2001 (Annexure P-3) passed by the Labour Court is set aside with no order as to costs.