CWP No. 10809 of 2009 and another connected case 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 26.03.2010 CWP No. 10809 of 2009 Indian Red Cross Society and St. John Ambulance Association, District Branch, Bathinda and another ...... PETITIONERS VERSUS Presiding Officer, Industrial Tribunal, Bathinda and another ....... RESPONDENTS CWP No. 5412 of 2010 Manjit Kaur d/o Sh. Teja Singh ...... PETITIONER VERSUS Indian Red Cross Society and St. John Ambulance Association, District Branch, Bathinda and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Surinder Garg, Advocate, for the petitioners (In CWP No. 10809 of 2009) Mr. S.K.Sharma, Budhladewala, Advocate, for the petitioner (In CWP No. 5412 of 2010) for respondent No. 2 (In CWP No. 10809 of 2009) *** AUGUSTINE GEORGE MASIH, J. (ORAL) By this order, I propose to dispose of CWP No. 10809 of 2009 titled as Indian Red Cross Society and St. John Ambulance Association, District Branch, Bathinda and another vs. Presiding Officer, Industrial Tribunal, Bathinda and another and CWP No. 5412 of 2010 titled as Manjit Kaur d/o Sh. Teja Singh vs. Indian Red Cross CWP No. 10809 of 2009 and another connected case 2 Society and St. John Ambulance Association, District Branch, Bathinda and others, which are cross writs preferred by both the Management and the Worklady respectively challenging the Award dated 23.04.2009 passed by the Industrial Tribunal, Bathinda. The facts are being taken from CWP No. 10809 of 2009, wherein the challenge is made by the Management to the Award dated 23.04.2009 (Annexure P-7) passed by the Industrial Tribunal, Bathinda-respondent No. 1 vide which compensation amounting to Rs. 30,000/- has been awarded to respondent No. 2-Worklady. Counsel for the petitioner contends that as per the claim of respondent No. 2-worklady, she was appointed as an Auxiliary Nurse Midwife (hereinafter referred to as 'A.N.M.') on 21.11.1986. She continued with the Management initially in the regular pay scale and thereafter on a fixed salary of Rs. 1,000/- per month. Her services were terminated on 31.05.1993. She challenged the said termination order by way of CWP No. 7153 of 1993. The said writ petition came up for hearing before a Division Bench of this Court on 20.09.1993 when the same was dismissed by this Court by observing that no ground to interfere was made out. Thereafter, Review Application No. 507 of 1993 was preferred by respondent No. 2- worklady, which again was dismissed by this Court vide order dated 03.12.1993. The said order attained finality as the worklady did not approach the Hon'ble Supreme Court challenging the said order. Thereafter a demand was raised by the worklady, in which the conciliation proceedings failed leading to the reference made to the Labour Court for adjudication. Counsel for the petitioner contends that the worklady- respondent No. 2 intentionally did not disclose the factum of her having CWP No. 10809 of 2009 and another connected case 3 challenged the order of termination by way of filing a writ petition and dismissal of the same as well as the filing of the Review Application and its dismissal by this Court. His first submission thus is that no relief can be granted to the worklady as the claim of the worklady would be hit by the principle of resjudicata. Since she has not approached the Industrial Tribunal with clean hands and has intentionally withheld the factum of her filing the writ petition and the review petition and its dismissal, the Industrial Tribunal should have rejected the claim of the worklady on this ground itself. That apart, he contends that the Industrial Tribunal has come to a conclusion and has given a finding that the termination of the services of the worklady was fully justified and in accordance with law but still has proceeded to grant compensation of Rs. 30,000/- in lumpsum on the ground that a cheque of Rs. 2142/- as one month's salary in the year 1993, which was sent to the worklady and was refused by the worklady, was lying with the Management. He contends that the reasoning for granting compensation, specially when it has been found that the termination of the services of the worklady was in accordance with law, cannot be sustained. On this basis, he prays for the writ petition to be allowed and setting aside of the impugned Award dated 23.04.2009 (Annexure P-7) to the extent of awarding Rs. 30,000/- as lumpsum compensation. On the other hand, counsel for respondent No. 2-worklady contends that non-disclosure of the factum of filing of the writ petition, dismissal of the same as also the review petition, would not have any bearing on the claim petition preferred by the worklady on the ground that the writ petition would not be maintainable against the petitioner- Management as it is not a State under Article 12 of the Constitution of India. He contends that this has been the consistent view of this Court that CWP No. 10809 of 2009 and another connected case 4 Indian Red Cross Society is not a State within the meaning of Article 12 of the Constitution of India and thus the writ petition is not maintainable against it. In any case, he contends that the dismissal of the writ petition would not act as a resjudicata for submitting the claim before the Labour Court. His further contention is that it has come on record that the amount of compensation, which was sent to the worklady-respondent No. 2, was never refused by the worklady-respondent No. 2. The Management Witness MW1 Dharam Singh, Secretary, District Red Cross Society, Bathinda, had admitted in his cross-examination that the cheque, which was sent through registered post, does not in itself show the receipt of the same. He further contends that further communication also has not been admitted by the Management Witness to have reached the worklady. His submission is that the worklady was initially appointed on 21.11.1986 as A.N.M. in the regular pay scale but subsequently, due to the closing down of the Centre, her services were terminated. After that, she had been appointed on a fixed salary of Rs. 1,000/- in the year 1995 and worked up to 1998. He, on this basis, contends that the findings, which have been recorded by the Labour Court with regard to the termination of the services of the worklady being in accordance with law, cannot be sustained. He contends that the worklady had worked for nine years with the petitioner- Management and has been now rendered over-age and, therefore, the compensation, which has been granted by the Industrial Tribunal, does not call for any interference by this Court. Counsel for respondent No. 2 further contends that the Management has resorted to unfair labour practice by granting her the wages, which are below the minimum wages on her subsequent appointment in the year 1995 i.e. Rs. 1,000/- per month. He, on this basis, contends that the Award passed by the Industrial Tribunal CWP No. 10809 of 2009 and another connected case 5 dated 23.04.2009 cannot be sustained and since the worklady has also challenged the Award in CWP No. 5412 of 2010, the same should be set aside and the benefit of reinstatement in service with all consequential benefits should be given to the worklady. Counsel for respondent No. 2- worklady, however, is unable to rebut the factum and the findings given by the Industrial Tribunal that the Centre, at which the worklady was performing her duties, stood closed as the same was handed over to the Health Department. I have heard the counsel for the parties and have gone through the records of the case. The factum that the worklady had preferred CWP No. 7153 of 1993 challenging her termination from the post of A.N.M., which was dismissed on 20.09.1993 and thereafter, filing of the Review Application, which again was dismissed by a Division Bench of this Court on 03.12.1993, has not been disputed. The statement of claim dated 27.05.1996 (Annexure P-5) made by the worklady leaves no manner of doubt that the worklady had not disclosed this fact in the said claim petition. A specific stand was taken by the Management by way of an objection that after the dismissal of the writ petition for the same cause of action, the proceedings before the Labour Court would be barred by the principle of resjudicata. That being so, the Labour Court had wrongly proceeded to decide the reference. When a proceeding is challenged before the High Court, which has jurisdiction to entertain the same and the said claim has been rejected without giving liberty to the parties to avail of the alternative remedy, the principle of resjudicata would be fully applicable. The order dated 20.09.1993 passed by the Division Bench of this Court in CWP No. CWP No. 10809 of 2009 and another connected case 6 7153 of 1993 reads as follows:- “Present:- Mr. G.S.Dhillon, Advocate. Mr. P.K.Mutneja, Advocate. *** No ground to interfere. Dismissed. Sd/-M.R.AGNIHOTRI JUDGE Sd/- R.S.MONGIA JUDGE Sept. 20,1993” Thereafter, Review Application No. 507 of 1993 preferred by the worklady was also dismissed on 03.12.1993. The said order reads as follows:- “ No ground for recalling our earlier order is made out. Dismissed. Sd/-M.R.AGNIHOTRI JUDGE Sd/- R.S.MONGIA JUDGE December 3, 1993” A perusal of the above orders would leave no manner of doubt that the case of the worklady was decided by this Court on merits. The contention of the counsel for respondent No. 2-worklady that the Indian Red Cross Society is not a State within the meaning of Article 12 of the Constitution of India, therefore, the writ petition was not maintainable, does CWP No. 10809 of 2009 and another connected case 7 not cut any ice as this Court had not rejected the claim of the worklady on the ground of the writ petition being not maintainable. In any case, no relief deserves to be granted to a person, who does not come to the Court with clean hands and suppresses the material facts. The statement of claim dated 27.05.1996 (Annexure P-5) does not disclose the factum of the worklady having approached the High Court. This itself disentitles the worklady of her right to the claim which she had put forth before the Labour Court. On this ground alone, the writ petition deserves to be allowed. The Labour Court has, on consideration of the evidence led by the parties and taking into consideration the pleadings, rightly come to a conclusion that the service of the worklady was terminated in accordance with law. The contention of the counsel for the worklady that the cheque, which was sent to the worklady, was not received by her, does not carry weight for the reason that the said cheque was sent through registered post, which factum has come on record and even the receipt with regard to the sending of the same has been proved before the Labour Court. Merely because the Management Witness states that he is not aware whether the said letter reached the worklady or not, would not lead to a conclusion that it was not sent. The requirement of law is the offer and thereafter, the sending of the amount of compensation to which the worklady would be entitled to on retrenchment or termination. The provisions, as contained under Section 25-F (b) of the Industrial Disputes Act have been fully complied with and, therefore, the finding recorded by the Labour Court with regard to the termination of the services of the worklady being in accordance with law, does not call for any interference by this Court. It is not in dispute that the Centre, where the worklady- respondent No. 2 was working as an A.N.M., had closed down as the same CWP No. 10809 of 2009 and another connected case 8 was handed over to the Department of Health. It is also not in dispute and rather has come on record that the worklady was the junior most A.N.M. and no person junior to the worklady was retained in service. The contention of the counsel for respondent No. 2 that other persons, who were appointed after the worklady, have been retained, does not hold the field for the reason that they do not belong to the category, to which the worklady belongs i.e. A.N.M. In the light of the fact that the termination of the services of the worklady was in accordance with law, the Labour Court has erred in law in granting compensation of Rs. 30,000/- in lumpsum and that too, for the reason that the cheque of Rs. 2142/- in the year 1993 which the worklady had refused to accept is lying with the Management for long 17 years. This can not be, by any stretch of imagination, said to be a justifiable reason for granting compensation of Rs. 30,000/- in lumpsum. Accordingly, the compensation amount, which has been awarded to the worklady also being without any basis, deserves to be set aside. In view of the above, CWP No. 10809 of 2009 preferred by the petitioner-Management is hereby allowed and the writ petition bearing CWP No. 5412 of 2010 preferred by Manjit Kaur-worklady is hereby dismissed. The Award dated 23.04.2009 (Annexure P-7) passed by the Industrial Tribunal, Bathinda with regard to the grant of compensation of Rs. 30,000/- is hereby set aside. ( AUGUSTINE GEORGE MASIH ) JUDGE March 26, 2010 pj CWP No. 10809 of 2009 and another connected case 9