The Registrar, University of Mumbai vs Parag Bhaskar Ghag

S.C. Gupte, J. - This petition challenges an order passed by the Industrial Court at Mumbai on 9 December 2015 on a complaint of unfair labour practise, being Complaint (ULP) No.313 of 2015. By the impugned order, the Industrial Court inter alia directed the Petitioner herein to appoint the Respondents in preference on the newly created posts or new appointments of contract employees, as the case may be, and also to pay earned wages of the Respondents for the months of August, September and October 2015.

The Petitioner is the University of Mumbai governed by the Maharashtra Universities Act, 1994. The Respondents were appointed as temporary employees by the Petitioner University purportedly to meet exigencies of work, initially for a period of six months and thereafter for further periods of six months from time to time. The Respondents filed two writ petitions, being Writ Petition Nos. 1492 of 2013 and 2615 of 2013, in this Court seeking inter alia regularisation of their services with the Petitioner University. A Division Bench of this Court, by a common speaking order dated 6 January 2015, dismissed the two petitions. An SLP filed by the Respondents against that order was also dismissed by the Supreme Court. The Respondents, thereafter, filed the present complaint before the Industrial Court, alleging unfair labour practices under Items 5, 6 and 9 of Schedule IV of the MRTU & PULP Act. The subject matter of this complaint was practically the same as the subject matter of the writ petitions dismissed by the Division Bench. The Respondents claimed benefits of permanency and also applied for interim relief restraining the Petitioner from terminating the Respondents'' services. The Petitioner filed a preliminary objection concerning maintainability of the complaint on the ground of res judicata. During the pendency of this complaint, the Petitioner terminated the contract of employment of the Respondents. The Respondents, thereupon, filed an application for additional interim relief seeking an order for resumption of duties. After hearing the parties, the Industrial Court passed the impugned order.

One of the main grievances of the Petitioner in the present petition is that the Industrial Court rejected the Petitioner''s objection to the maintainability of the complaint on the ground of res judicata improperly and without applying its mind to the correct principles of law in that behalf. The Industrial Court held that the writ petitions were not decided by this Court on merits; so also, the dismissal of the special leave petition was not on merits; and that, therefore, the principles of res judicata would not apply to the facts of the present case. It is submitted that though the writ petition and the special leave petition were dismissed at the admission stage, the dismissal was on merits, in the case of the writ petition in fact by a speaking order; and that the matter is, thus, heard and finally decided and the principles of res judicata would apply.

In reaching its conclusion on the question of res judicata, the Industrial Court appears to have been guided by the judgment of the Supreme Court in the case of Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, 1978 AIR 1283. In that judgment, the Supreme Court, whilst analysing the principles of res judicata, observed that when a writ petition is dismissed either at the threshold or after contest but without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided by the Court and, in such case, any other remedy, whether by way of a suit or other proceeding, will not be barred on the principle of res judicata. Though there is something to be said on the part of the Respondents in the present case on the application of the principles of res judicata to their complaint, the Industrial Court was certainly not right in coming to the conclusion that the writ petitions were not decided on merits or without expressing any opinion on merits. The petitions were obviously on the footing that by reason of the Respondents (Original Petitioners in the petition) having worked continuously with the university for a long period of time, they were entitled to regularisation or permanency. The Division Bench, whilst hearing the petitions, was guided by the principle of law laid down by the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, 2006(4) SCC 1. The Supreme Court had, in that judgment, laid down a proposition of law that in the event initial appointment as an ad-hoc or temporary employee was not made after following the due procedure of recruitment applicable for the concerned State employment, a mere continuation of such employment for any length of time does not entitle the employee to an order of regularization. The Court held that such regularisation would offend the mandate of Articles 14 and 16 of the Constitution of India, which require observance of equality in the matter of opportunity of employment under the State. In the face of this judgment, as also the subsequent judgments of the Supreme Court, noted in the order of the Division Bench, the writ petitions were dismissed. Such dismissal amounts to a dismissal on merits and certainly after expression of opinion on merits of the case. The Industrial Court was, therefore, not right in invoking the principle of law laid down in the case of Cochin Port Trust (supra). At the same time, however, it is important to note that the judgment of the Supreme Court in Umadevi''s case was later explained by the Supreme Court in the case of MSRTC v. Casteribe Rajya Parivahan Karmchari Sanghatana, (2009) 8 SCC 556. In that case, the Supreme Court held that whilst the High Courts may not in exercise their powers under Article 226 of the Constitution of India regularise employment of adhoc or temporary workmen working under the State merely on the basis of the length of time during which such employment continues, since it would offend the mandate of Articles 14 and 16 of the Constitution of India, yet in a case where there has been an unfair labour practise or exploitation of workmen by continuing such workmen in adhoc or temporary posts, despite availability of permanent posts or requirements of perennial jobs, the Industrial adjudicators under various labour laws are not denuded of powers to grant affirmative relief, including the relief of regularisation or according permanency to the aggrieved workmen. This position was further explained by reconciling the seemingly conflicting positions in the judgments delivered in Umadevi and MSRTC, in the case of Hari Nandan Prasad v. Management of FCI 2014 1 CLR 919 (S.C.). In the light of these judgments, there is still a case for considering whether the complaint of unfair labour practise in the present case is maintainable. To that extent, even the question as to whether and to what extent the judgment of the Division Bench in the two petitions noted above affects the determination of maintainability in its own face, is also by no means concluded and needs to be decided by the Industrial Court.

It is, in the premises, in the interest of justice that the matter is remanded to the Industrial Court at Mumbai for a fresh decision in accordance with law.

Accordingly, the present petition is disposed of by setting aside and quashing the impugned order of the Industrial Court dated 9 December 2015 and remanding the complaint back to the Industrial Court for a fresh determination in accordance with law and after considering the order passed herein. Such fresh consideration of complaint shall include consideration as to the maintainability of the complaint on all grounds urged by the Petitioner herein, including ground of res judicata, but in the light of the observations made in this order.