27 September 2004
Supreme Court
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EXECUTIVE ENGINEER ZP ENGG. DIV. Vs DIGAMBARA RAO ETC. ETC.

Bench: N. SANTOSH HEGDE,S.B. SINHA
Case number: C.A. No.-001164-001166 / 2002
Diary number: 13231 / 2001
Advocates: Vs G. NARASIMHULU


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CASE NO.: Appeal (civil)  1164-66 of 2002

PETITIONER: Executive Engineer ZP Engg. Divn. & Anr.

RESPONDENT: Digambara Rao etc. etc.

DATE OF JUDGMENT: 27/09/2004

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       These appeals arise out of the judgments and orders dated 9.11.2000  and 20.11.2000  passed by the High Court of Karnataka at Bangalore in Writ  Appeal Nos.2756-57 of 2000 and  2759 of 2000 respectively whereby and  whereunder the appeals preferred by the Appellants herein against  the  orders dated 14.2.2000 and 15.2.2000 passed by the learned Single Judge of  the said court in  several  writ petitions were dismissed. FACTS :         The Respondents were originally employed on daily wages in relation  to a Scheme  known as ’Kriya Scheme’ aimed at providing drinking water  and construction of  roads for the benefit of the rural poor in the District of  Gulbarga in the State of Karnataka.  The employment allegedly commenced  in the year 1993. The services of the Respondents were terminated in 1996.   They filed writ petitions before the Karnataka High Court contending , inter  alia, that as they having worked for a number of years, became entitled for  regularization.  It was furthermore contended that they had still been in  service.  The prayers made in the said writ petitions which are relevant for  our purpose are as under :

"a)     Issue a writ of mandamus order or direction directing  Respondents No.2 & 3 to regularization (sic for  regularize) the service of the  petitioner no.1 to the post  of Assistant Engineer in the pay scale of Rs.2050/- with  allowance, the petitioners no. 2 and 3 as Junior Engineers  in the pay scale of Rs.1520/- and allowance.

b)      Issue a writ in the nature of mandamus order or direction  not to discontinue the service of the petitioners and to  direct payment of arrears of salary from September 1996  onwards and also to pay difference or arrears of salary to  the petitioners from the date of completion of 240 days to  grant all service benefits as are applicable to regular  employees like seniority, promotion, increments,  allowance etc."

  The said writ petitions came up for consideration before a learned  Single Judge of the Karnataka High Court.  

We may further notice that along with the said writ petitions, the  Respondents herein annexed two documents wherefrom it appeared that they  had allegedly continued to work beyond 19.10.1996, the date of termination  of their services.  Upon an inquiry made in this behalf at the behest of the  High Court, it was contended by the Appellants by  filing an additional  affidavit that no payment for daily wages had been made to the Respondents  after the order of their discharge and such certificates had been procured

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from a Junior Engineer against whom a departmental inquiry had  been  initiated.  It was further pointed out that author of one of the documents had  himself disowned the said letter in terms of a communication annexed to the  said additional affidavit.  

In the said writ petitions, two questions fell for consideration :

"1)     Whether the petitioners continued in employment of the  Respondents beyond the 19th of October, 1996; and 2)  Whether they are on the basis of the service rendered as  daily wager entitled to an order of regularization?"

By reason of a judgment and order dated 1.12.1997, the learned Single  Judge held that having regard to the fact that their services had been  discontinued, the question of a direction being issued for continuance of  their services does not arise having regard to the fact that the life of the  Scheme had come to an end.  As regard the claim for regularization even on  the basis of the services rendered by the Respondents upto October 1996, it  was held that they were not entitled thereto in law.

The writ petitions were, thus, dismissed.  An appeal preferred  thereagainst was also  dismissed by the Division Bench of the said High  Court by an order dated 19.3.1998.  Despite the same, the Respondents  herein filed applications before the Labour Court at Gulbarga which were  marked as Reference. Nos. 495 of 1998 , 484 of 1998  and 498 of 1998.    In  the said Reference Applications, the Respondents did not disclose that the  High Court had dismissed their earlier writ petitions and furthermore the  appeal preferred thereagainst had also been dismissed.  Written statements in  the said proceedings were filed by the Appellants, wherein, inter alia, it was  contended that the employment of the Respondents was for daily wages and  for a specific scheme.  A further contention was raised therein that having  regard to the decision of the High Court in the earlier writ petitions,  Respondents were not entitled to any relief.   

By an order dated 1.10.1999, the Labour Court, however, passed two  awards setting aside the orders of termination, inter alia, on the ground that   the Respondents having worked for more than 240 days, the provisions of  Section 25F of the Industrial Disputes Act were required to be complied  with.  They were in terms of the said awards directed to be reinstated with  50% of the back-wages.  The legality and/or validity of the said awards  came to be questioned by the Appellants herein by filing two writ petitions  before the Karnataka High Court which were marked as Writ Petition  Nos.3808 of 2000 and 3697-98 of 2000 which were dismissed by an order  dated 14.2.2000  and 15.2.2000.  The appeals thereagainst filed by the  Appellants herein were also dismissed by  orders dated 9.11.2000 and  20.11.2000.  Hence these appeals.

SUBMISSIONS : Mr. Mallikarajun Reddy, learned counsel appearing on behalf of the  Appellants, would, inter alia, submit that the Reference Applications were  barred under the principle of res judicata.  The learned counsel would  contend that the principle of res judicata would apply to a proceeding under  the Industrial Disputes Act and in that view of the matter, the High Court  committed a manifest error in not interfering with the awards passed by the  Labour Court.  Reliance in this behalf has been placed on Pondicherry Khadi  & Village Industries Board vs. P. Kulothangan and Another  [(2004) 1 SCC  68].

Mr. K. Maruthi Rao, learned  counsel appearing on behalf of the  Respondents, on the other hand, would submit that the principle of res  judicata has no application in the instant case inasmuch as in the writ  petitions the prayer  made by the Respondents herein was for regularization  of their services, whereas  before the Labour Court the legality or otherwise  of the orders of termination came to be questioned.  In any event, Mr.

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Maruthi Rao would contend that having regard to the fact that the  Respondents herein are qualified Junior Engineers and  have already crossed  the age of forty, this Court may not, in its discretion, interfere with the  impugned judgments.

ANALYSIS : The said writ petitions were filed by the Respondents on the following  premise : (1) The Respondents had been appointed in the year 1993; (2)  When the writ petitions were filed they were still in service; (3) They were  appointed as Daily Wages Graduate Engineers;  (4) They were not being  paid the regular scale of pay, although they had been doing the same work as  was being done by the regular employees; (5) Having regard to the fact that  they had rendered about four years of continuous service  and being under  threat of termination of service, they were entitled to be regularized in their  service as also other benefits attached thereto,  having completed 240 days  of continuous service in a year.   

We have noticed hereinbefore that the factual premise that the  Respondents had still been in service at the time of filing of the writ  petitions  had been found to be  incorrect,  as in fact their services had been  terminated on or about 19.10.1996.  It was further held that as they were  appointed against a Scheme, the question of their continuance in service  beyond the life thereof does not arise.  The High Court was furthermore of  the opinion that their services cannot be directed to be regularized.

We have noticed hereinbefore that although the principal plea of the  Respondents in the said writ petition was for regularization of their services  but they had also prayed for issuance of a writ of mandamus or for a  direction not to discontinue their services as also payment of arrears of  salary from September 1996 onwards,  difference or arrears of salary from  the date of completion of 240 days and  to grant all service benefits as   applicable to regular employees like seniority, promotion, increments,  allowance etc. The said prayer in the said writ applications had a direct nexus with  the orders of  termination of their services.  A finding of  fact  having been  arrived at that their services had been terminated and they were not entitled  to  continue in service, in our opinion, the legality or otherwise of the said  purported orders of termination could not have been the subject-matter of  proceedings under the Industrial Disputes Act;  for the reason that if the  Respondents herein were not entitled to continue in their services by reason  of the judgment of the High Court, the  question of their reinstatement with  back-wages would not arise.   

The Respondents herein approached the High Court with full  knowledge that their services had been terminated. Their attempt to show  that they were still in service had been disbelieved and it was found as of  fact that their services had been terminated on 19.10.1996.  The  Respondents, therefore, while filing the writ application were bound  to lay  their whole claim having regard to the provisions contained in Order II Rule  2 of the Code of Civil Procedure or the principles analogous thereto.  The  very basis upon which the writ petitions were based was found to be  incorrect.  It was, thus,  obligatory on the part of the Respondents herein to  question their orders of termination  upon placing correct facts before the  High Court.  They did not choose  to do so.  They did not pray for and obtain  any  leave of the court to raise the contention about the legality or otherwise  of the orders of termination before an appropriate forum.  Furthermore, their  plea to the effect that they were entitled to continue in service was  specifically rejected.  In that view of the matter, the proceedings initiated  before the Labour Court questioning the orders of termination passed against  them by the  Appellants praying for their reinstatement with full back- wages, in our opinion, was wholly misconceived.  Such a plea was barred  under the principle of Res Judicata.  It is now well-settled that the general   principle of Res Judicata applies to an industrial adjudication.

In P. Kulothangan  (supra), this Court held  :  

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              "The principle of res judicata operates on the  court.  It is the courts which are prohibited from trying  the issue which was directly and substantially in issue  in the earlier proceedings between the same parties,  provided the court trying the subsequent proceeding is  satisfied that the earlier court was competent to dispose  of the earlier proceedings and that the matter had been  heard and finally decided by such court.  Here the  parties to the writ petition filed by the respondent in the  Madras High Court and the industrial dispute were the  same.  The cause of action in both was the refusal of the  appellant to allow the respondent to rejoin service.  The  Madras High Court  was competent to decide the issue  which it did with a reasoned order on merits and after a  contested hearing.  This was not a case where the  earlier proceedings had been disposed of on any  technical ground as was the case in Workmen v. Board  of Trustees of the Cochin Port Trust [(1978) 3 SCC  119)]  and Pujari Bai v. Madam Gopal [(1989) 3 SCC  433].  The "lesser relief" of reinstatement which was  the subject-matter of the industrial dispute had already  been claimed by the respondent in the writ petition.   This was refused by the High Court.  The correctness of  the decision in the writ proceedings has not been  challenged by the respondent.  The decision was,  therefore, final.  Having got an adverse order in the writ  petition, it was not open to the respondent to reagitate  the issue before the Labour Court and the Labour Court  was incompetent to entertain the dispute raised by the  respondent and redecide the matter in the face of the  earlier decision of the High Court in the writ  proceedings."

It is no doubt true, as has been contended by Mr. Maruthi Rao,  that  the burden of proof that the Respondents were employed against a particular  Scheme was on the Appellants but such a burden stood discharged and in  any event the said question was no longer alive having regard to the decision  of the Karnataka High Court in the earlier writ petitions.   

The plea raised before us by the Respondents to the effect that their  termination of employment fell within sub-clause (bb) of clause (oo) of the  Industrial Disputes Act,  apart from having not been raised before the  Labour Court and the High Court, in our opinion, is not available to them  having regard to the decision of the High Court in the writ petitions filed by  the Respondents. The decision of  a Division Bench of this Court in S.M. Nilajkar and  Others vs. Telecom District Manager, Karnataka [(2003) 4 SCC 27], upon  which reliance was placed by Mr. Maruthi Rao, therefore, cannot be said to  have any application whatsoever in the instant case.

It may not be out of place to mention that completion of  240 days of  continuous service in a year may not by itself be a ground for directing an  order of regularization.  It is also not the case of the Respondents that they  were appointed in accordance with the extant rules.  No direction for  regularization of their services was, therefore, could be issued. [See A.  Umarani vs. Registrar, Cooperative Societies and Ors. [2004 (6) SCALE 350  = (2004) 7 SCC 112]  and Pankaj Gupta & Ors. etc. vs. State of Jammu &  Kashmir & Ors.  [2004 (7) SCALE 682]  Submission of Mr. Maruthi Rao to  the effect that keeping in view the fact that the Respondents are diploma- holders and they have crossed the date of 40 by now, this Court should not  interfere with the impugned judgment is stated to be rejected.

In  A. Umarani (supra), this Court rejected the similar contention upon

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noticing the following judgments  :

"In a case of this nature this court should not even  exercise its jurisdiction under Article 142 of the  Constitution of India on misplaced sympathy.

In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh  and Others [(2004) 2 SCC 130], it is stated:

"We have no doubt in our mind that sympathy or  sentiment by itself cannot be a ground for passing  an order in relation whereto the appellants  miserably fail to establish a legal right.  It is  further trite that despite an extra-ordinary  constitutional jurisdiction contained in Article 142  of the Constitution of India, this Court ordinarily  would not pass an order, which would be in  contravention of a statutory provision.   

As early as in 1911, Farewell L.J. in Latham  vs. Richard Johnson & Nephew Ltd. [1911-13 AER  reprint p.117] observed : "We must be careful not to allow our  sympathy with the infant plaintiff to affect our  judgment. Sentiment is a dangerous Will O’  the Wisp to take as a guide in the search for  legal principles."

       Yet again recently in Ramakrishna Kamat & Ors.  Vs. State of Karnataka & Ors. [JT 2003 (2) SC 88], this  Court  rejected a similar plea for regularization of  services stating :   

"\005We repeatedly asked the learned counsel for  the appellants on what basis or foundation in law  the appellants made their claim for regularization  and under what rules their recruitment was made  so as to govern their service conditions.  They  were not in a position to answer except saying that  the appellants have been working for quite some  time in various schools started pursuant to  resolutions passed by zilla parishads in view of the  government orders and that their cases need to be  considered sympathetically.  It is clear from the  order of the learned single judge and looking to the  very directions given a very sympathetic view was  taken.  We do not find it either just or proper to  show any further sympathy in the given facts and  circumstances of the case.  While being  sympathetic to the persons who come before the  court the courts cannot at the same time be  unsympathetic to the large number of eligible  persons waiting for a long time in a long queue  seeking employment\005."    

For the foregoing reasons,  we are of the opinion that the Labour  Court and the High Court committed a manifest error in passing the  impugned judgments and awards and as such they are liable to be set aside.  

These appeals are allowed and the impugned judgments and award are  set aside.  No costs.