Hakam Singh vs Labour Commissioner, Punjab and Others

Gurmeet Singh Sandhawalia, J.—The challenge in the present writ petition is to the order dated 7.3.2006 (Annexure P/4) whereby reference has been rejected by the Assistant Labour Commissioner, Rajpura on account of the fact that the Civil Court has already decided the issue against the petitioner which was upheld till this Court. Counsel for the petitioner has submitted that the petitioner had wrongly approached the Civil Court and the jurisdiction would lie with the Labour Court and therefore, the order dated 7.3.2006 is not sustainable and the dispute should be referred to the Labour Court.

After hearing the counsel for the petitioner, this Court is of the opinion that there is no merit in this submission. Admittedly the Civil Suit No. 329T of 28.11.1998 was filed challenging the termination order dated 3.9.1998. Initially the petitioner was successful and the suit was decreed in his favour on 19.11.2001 (Annexure P/1). However, in appeal on 3.9.1998, the Appellate Court reversed the said judgment. The petitioner approached this Court by way of Regular Second Appeal No. 2834 of 2002 which was dismissed on 21.9.2004 (Annexure P/2) after holding that the petitioner was only employed as a contractual employee and there was some interpolation in the cash memo on account of which his services were dispensed with. The petitioner chose not to further agitate the issue and the findings became final.

However, under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") an industrial dispute was sought to be raised which has now been rejected vide impugned order dated 7.2.2006. It is settled principle of law that once the petitioner has elected his remedy and got a decision against him, he cannot choose another remedy and he cannot be permitted to do forum shopping. A Full Bench of this Court in Sukhi Ram Vs. State of Haryana, 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 under Section 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:-

"10. 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."

Thereafter the Division Bench of this Court in Punjab Agro Industries Corporation Ltd. Vs. The Presiding Officer, Labour Court, Union Territory and Another, also held in the same terms wherein the workman had challenged his dismissal in the civil Court which was dismissed and an application had also been filed for amendment of the plaint to challenge the order of dismissal in the Appellate Court which was rejected. The matter was referred to the labour Court which gave an award in favour of the workman which was challenged by the management. The writ petition was allowed on the ground that principle of constructive res-judicata would apply. The workman had a right to challenge the termination order which he had attempted. The relevant observations read as under:-

"4. 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 under Section 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 2 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 under Section 11 of the Code of Civil Procedure 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 under Section 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 under Section 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 hole that no relief was to be allowed, applying principles of constructive res judicata to the present representation."

Another factor which weighs heavily is that the impugned order dated 7.3.2006 has been challenged after a period of more than 8 years. At this stage, the industrial dispute was lying dead as a dodo and the petitioner is now seeking revival of the dead industrial dispute. The Hon''ble Apex Court in The Nedungadi Bank Ltd. Vs. K.P. Madhavankutty and Others, has specifically held that the dead industrial disputes are not liable to be referred. The relevant observations read as under:-

"6. Law does not prescribe any time-limit for the appropriate government to exercise its powers under Section 10 of the Act. It is not that this power can be exercised at any point of time and to revive matters which had since been settled. Power is to be exercised reasonably and in a rational manner. There appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended. A dispute which is stale could not be the subject-matter of reference under Section 10 of the Act. As to when a dispute can be said to be stale would depend on the facts and circumstances of each case. When the matter has become final, it appears to us to be rather incongruous that the reference be made under Section 10 of the Act in the circumstances like the present one. In fact it could be said that there was no dispute pending at the time when the reference in question was made. The only ground advanced by the respondent was that two other employees who were dismissed from service were reinstated. Under what circumstances they were dismissed and subsequently reinstated is nowhere mentioned. Demand raised by the respondent for raising an industrial dispute was ex facie bad and incompetent.

In the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of the dismissal of the respondent. Whenever a workman raises some dispute it does not become an industrial dispute and the appropriate government cannot in a mechanical fashion make the reference of the alleged dispute terming it as industrial dispute. The Central Government lacked power to make reference both on the ground of delay in invoking the power under section 10 of the Act and there being no industrial dispute existing or even apprehended. The purpose of reference is to keep industrial peace in an establishment. The present reference is destructive to the industrial peace and defeats the very object and purpose of the Act. The bank was justified in thus moving the High Court seeking an order to quash the reference in question."

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 and being unsuccessful, it would not be open for him to reagitate the issue afresh before any other Forum. Resultantly, this Court is of the opinion that the order passed is well justified in the facts and circumstances and there is no merit in the present writ petition and the same is dismissed in limine.