Pale Ram vs The Presiding Officer

Gurmeet Singh Sandhawalia, J.—Challenge in the present petition is to the award dated 18.7.2011 (Annexure P-9) whereby reference has been declined. The admitted facts are that the petitioner was appointed on the post of Pharmacist/Dispenser with effect from 14.10.1992 and his services were dispensed with on 28.10.1992 and, therefore, he never completed the mandatory service of 240 days. The petitioner filed Civil Writ Petition No. 14362 of 1992 challenging his termination which was dismissed as withdrawn on 29.3.1995 with liberty to peruse his alternative remedy. Thereafter, he filed Civil Suit No. 727/1 of 8.3.1996 and sought relief of declaration and mandatory injunction. He was unsuccessful and the said suit was dismissed on 24.2.2001. Then the demand was raised on 10.4.2001 under Section 2-A of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and the matter was referred to the Labour Court. The Labour Court has now declined the reference on the ground that no right of workman had been infringed and once the petitioner had not completed the mandatory period of 240 days, the jurisdiction of the Labour Court itself could not been be attracted in the facts and circumstances of the present case. Another interesting aspect of the matter is that the petitioner had elected his remedy by way of firing the Civil Court and taken a chance. After having been unsuccessful, he opted to avail his remedy under the Act which cannot be permitted. The Full Bench of this Court in Sukhi Ram Vs. State of Haryana, ) has settled the legal proposition 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 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."

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 under Section 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:--

"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 hold that no relief was to be allowed, applying principles of constructive res judicata to the present representation."

Another Division Bench of this Court in State of Punjab and another v. Dharam Singh and another, 2004 (8) SLR 327 also held in the said terms wherein also, the employee had firstly raised the dispute before the Civil Court and got findings against him on merits and then resorted to his remedy under the Act. The relevant observations read thus:--

"9. The petitioner, in our view, having lost his matter before the Civil Court, could not have reagitated the matter before the Labour Court. Reference, in the facts and circumstances of this case, before the Labour Court was, thus, not competent.

In view of the discussion made above, we hold that the petitioner having chosen to go to Civil Court, when he lost the matter before the Civil Court upto lower Appellate Court, could not re-agitate the matter before the Labour Court under the provisions of the Act."

A three Judge Bench of the Apex Court, in Rajasthan State Road Transport Corporation and Another Vs. Bal Mukund Bairwa, held that the jurisdiction of the Civil Court could not be held to be barred and will necessarily have jurisdiction to try a suit. The relevant observations read as under:--

"23. If an employee intends to enforce his constitutional rights or a right under a statutory Regulation, the civil court will have the necessary jurisdiction to try a suit. If, however, he claims his right and corresponding obligations only in terms of the provisions of the Industrial Disputes Act or the sister laws so called, the civil court will have none. In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of his service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the Civil Court will have no jurisdiction. This aspect of the matter has recently been considered by this Court in Rajasthan SRTC and Others Vs. Mohar Singh, . The question as to whether the civil court''s jurisdiction is barred or not must be determined having regard to the fact of each case.

If the infringement of Standing Order or other provisions of the Industrial Disputes Act are alleged, the civil court''s jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil court''s jurisdiction may not be held to be barred. If no right is claimed under a special statute in terms whereof the jurisdiction of the civil court is barred, the civil court will have jurisdiction."

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 before any 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.