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CASE NO.: Appeal (civil)  3874 of 2003

PETITIONER: Lal Singh Ram Singh Rajput                       

RESPONDENT: The Asstt. Executive Engineer         

DATE OF JUDGMENT: 17/03/2005

BENCH: N. Santosh Hegde,B.P. Singh & S.B. Sinha

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The termination of the appellant herein from the  post of watchman without following the provisions of  Section 25 (F) of the Industrial Disputes Act, 1940 (The  Act) came to be referred to the Labour Court, Bijapur.   The Labour Court was pleased to allow the reference in  part and directed the respondent to reinstate the  appellant at the existing rate of wages.  However, the  other benefits like backwages, continuity of service and  consequential benefits were not allowed.  This award  gave rise to two writ petitions.  One by the first  respondent herein challenging the award of the Labour  Court directing reinstatement, this was done in writ  petition No. 8794 of 1998 and another by the appellant  \026 workman in Writ Petition No. 12089 of 1998 seeking  the benefits of continuity of service and backwages.   The High Court by its order dated 24.3.1998 dismissed  the writ petition of the respondent herein even without  issuing notice, at the stage of admission itself.  The writ  petition filed by the workman came to be allowed and  the learned Single Judge  directed the first respondent  not   only to reinstate  the appellant-workman as  directed in the award of the Labour Court but also  granted the benefit of continuity of service but without  backwages. The order of the learned Single Judge in  that writ petition was dated 30th June, 1999.  

       Thus, it is seen the writ petition filed by the  management  challenging the award came to be  dismissed  and the writ petition filed by the workman  seeking  enhanced relief  came to be allowed granting  continuity of service.   

        The management in this case first filed a writ  appeal No. 4974 of 1998  before the Division Bench of  the High Court in which it challenged the dismissal of its  writ petition challenging the award  of the Labour Court  by the learned Single Judge.  This writ appeal came to  be dismissed by the appellate bench at the stage of  admission itself without notice to the appellant.  Thus  the award of the Labour Court  became final there  being no further  appeal by the management.  This  order of the appellate court  dismissing the said writ

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appeal ex-parte  came to be made on 2nd of December,  1998.           The appellant-management filed another writ  appeal against the order of the learned Single Judge in  the writ petition filed by the workman seeking enhanced  relief.  This was done by way of a writ appeal No. 8318  of 1999, very much after its earlier writ appeal had been  dismissed.  Obviously  in the second writ appeal the  management did not disclose  the fact that its earlier  writ appeal challenging the award  had already been  dismissed.  This writ appeal which could have been  only against the order of the Single Judge granting   continuity of service came to be entertained by  another  Division Bench of the High Court,  notice of which was  issued  to the workman who had no knowledge  of the  earlier writ appeal being dismissed. In that background,  obviously the second Division Bench hearing the  second writ appeal of the management was unaware of  the judgment  of another Division Bench made in writ  appeal No. 4974 of 1998.

       In the absence of any such information the  Division  Bench in the second writ appeal noted that the  challenge in the said writ appeal was against  the  direction of the learned Single Judge granting  reinstatement  of the appellant-workman  as also  against the benefit of continuity of service and other  consequential benefits granted.  This,  as stated above,  is factually incorrect because the question of any  challenge by the management against the  reinstatement order made by the labour court as  affirmed  by the learned Single Judge  and by the  Division Bench by dismissal of appeal, could not have  been the subject matter of a second appeal before the  High Court.  

       Proceeding on that erroneous basis the Division  Bench of the High Court considering the grounds raised  by the appellant afresh and contrary to the view taken  by the  Division Bench  in the earlier writ appeal  reversed the findings of the Labour Court and came to  the conclusion that the evidence produced by the  appellant-workman  in regard to  his continuous  work  for 240 days in the management establishment was  unacceptable. On the said basis it set aside the award  of the Labour Court as well as  the order of the learned  Single Judge with a direction that the wages, if any,  already paid to the workman should not be recovered.  It is against this order of the Division Bench of the  High Court the appellant is before us in this appeal.   We do not think it is necessary for us to consider the  grounds on which the High Court in the impugned order  came to the conclusion that the appellant is not entitled  to the benefit of Section 25(F) of the Act because the  challenge, if any, on this ground by the respondent  to  the order of reinstatement made by the Labour Court is  hit by the principle of res judicata.  As noticed   hereinabove that issue stood concluded by the  judgment of the Division Bench made in writ appeal  8794 of 1998 holding that there was no compliance of  Section 25(F) of the Act by the respondent- management when the  appellant’s services were  terminated, and there being  no further challenge  to the  said order, that  order  being inter parties, the  management was precluded  from questioning  the said

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reinstatement in the second writ appeal.  It is because   of the fault committed by the management in not  bringing  to the notice of the second Division Bench the  factum  of its earlier  appeal being dismissed that  misled the High Court in the Second writ appeal into  going to the question of validity of the order of  termination, which question as stated above  already  stood concluded in  favour of the workman. Hence, the  question whether the workman had established  that he  had put in 240 days of continuous work immediately   prior to his dismissal,  was not a question available  for  the second Division Bench to be considered afresh.  On  that ground alone impugned order of the High Court is  liable to be set aside.   This leaves us to consider the question whether  the reliefs  granted by the learned Single Judge in the  writ petition of the workman granting him continuity of  service should be interfered with in this appeal or not.  Having perused the order of the learned Single Judge   and the contents of the claim petition, we think at this  distance of time it is not in the interest of justice to  modify or interfere with the additional benefit granted by  the learned Single Judge.  Hence, we allow this appeal  and set aside the impugned judgment and affirm the  order of the learned Single Judge made in Writ Petition  No. 12089 of 1998 dated 30th June, 1999 granting  continuity of service which in effect would mean  that  the appellant-workman herein is entitled to the benefit  of reinstatement as awarded by the Labour Court and  continuity of service as granted by the learned Single  Judge in the writ petition No. 12089 of 1998.  

       For the reasons stated above this appeal is allowed  with costs of Rs. 5000/-.