CWP No. 24066 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 24066 of 2013 Date of decision : 04.02.2014 [ENTITY] Petitioner Versus [ENTITY] and others Respondents CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the petitioner. [ENTITY] , J.
The present writ petition has been filed for quashing the award dated 04.07.2013 (Annexure P-1) whereby the Labour Court, Hisar has held that the claim was barred by the principle of res judicata, since the petitioner had opted to challenge his termination dated 01.03.2001 by filing the civil suit on 02.01.2004, which was dismissed on 14.03.2008 and the relief of reinstatement was denied. The petitioner thereafter was unsuccessful before the appellate Court on 19.04.2011. For the reasons best known to the petitioner, he preferred not to file second appeal before this Court and raised industrial dispute on 05.08.2011 after more than 10 years of his termination, which was on 01.03.2001. The Government in its wisdom referred the matter to the Labour Court, which has now decided the issue against the petitioner on the ground that the claim was barred by res judicata. The Labour Court distinguished the judgments which the petitioner had relied upon and placed reliance upon the judgment of the Apex Court in [PRECEDENT], to hold that the principle of election will govern and once the Civil Suit had been filed, the claim was barred by principle of res judicata.
Learned counsel for the petitioner vehemently placed reliance upon the judgment of The [PRECEDENT], which was also referred by the Labour Court and distinguished by holding as under:-
" In [ENTITY]'s case, the respondents were employees of the appellant-corporation viz., Rajasthan State Road Transport Corporation. Pursuant to disciplinary enquries held against them on charges of misconduct, their services were terminated. They filed civil suits for a declaration that the order terminating their services was illegal and invalid and for a further declaration that they must be deemed to have continued and were still continuing in the services of the corporation with all consequential benefits. The corporation resisted the suit on the ground inter alia that the civil court had no jurisdiction to entertain the suits. The Ld. trial court decreed the suits as prayed for. Appeals as also second appeals preferred by the corporation were dismissed by the Ld. District Judge and the Hon'ble High Court. The corporation took the matter to the Hon'ble Apex Court by ways of appeals which were allowed holding that the suits filed by the respondents were not maintainable before the civil court as the dispute between the parties was an 'industrial dispute' which could be decided only by the forums creates by the [ACT]."
This Court is of the opinion that this answer to the question has been settled beyond any shadow of doubt by the Full Bench of this Court in [PRECEDENT] vs. [ENTITY], 1982 (1) SLR 663, wherein it was 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 following question was formulated by the Full Bench in [PRECEDENT]'s case (supra):-
"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] of the [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 taken earlier to resort to the other remedy. However, it was specifically held that the workman must elect either 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."
A Division Bench of this Court, in [PRECEDENT], 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] 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.
Counsel for the petitioner has vehemently contended that the petitioner had served from 30.03.1993 to 01.03.2001 and, therefore, the Labour Court was in error in not deciding the merits of the case. However, this Court is of the opinion that once the petitioner had elected his remedy before the Civil Court and challenged the order of termination and prayed for reinstatement and was unsuccessful, the question of delving again into the merits of the issue would not arise as the principle of res judicata would come into play. The observations of the Division Bench of this Court in [PRECEDENT]'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] of the [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 [SECTION] of the [ACT]. 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] of the [ACT] 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] of the [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] of the [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 [PRECEDENT] 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.
10. 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 [PRECEDENT] 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 [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 [PRECEDENT]. 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 [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 and was unsuccessful 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.
February 04, 2014 ([ENTITY]) rts JUDGE