1 19 wp 9475.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9475 OF 2010 Mr. Sushilkumar Madhav Bhide R/o At Wadgaon, Taluka Maval, District Pune. ..Petitioner. Vs. Dr. Beck and Company Mumbai – Pune Road, Pimpri, Pune – 411 018. ..Respondent. Mr. Nitin Kulkarni for petitioner. Mr. K.S.Bapat for M/s. Desai & Desai Associate for respondent. CORAM : K.K.TATED, J. DATED : 11th April, 2011. JUDGMENT: 1 Heard learned counsel for parties. 2 Rule. 3 By consent matter is taken on board for final hearing at the stage of admission. 4 By this petition under Articles 226 and 227 of the Constitution of India, Petitioner-original Complainant challenges 2 19 wp 9475.10.doc the judgment and order passed by the learned Judge, 1st Labour Court, Pune dated dated 31st July, 2010 holding that trying issue no.4 in the present proceeding i.e. Reference (IDA) No. 433 of 2005 amounts to res judicata, it cannot be re-agitated again in that court. 5 A few facts of the matter are as under: The Petitioner-original complainant joined service with respondent on 8th October, 1973 as a Helper and subsequently he was appointed as a Plant Operator in Resin Plant in Production Department. The Petitioner has put his 23 years service with the respondent. On 3rd February, 1994 a charge- sheet was issued to the petitioner on various grounds. Thereafter, the respondent conducted enquiry. 6 Before passing any final order in the said enquiry, the Petitioner had filed a Complaint under section 28 read with Item nos.1(a), (b), (c), (d), (f) and (g) of Schedule-IV of the M.R.T.U. and P.U.L.P. Act, 1971, on the basis of a show-cause notice issued by the respondent. In the said complaint, petitioner contended that he was issued with the charge-sheet, on 3rd February, 1994, alleging therein that he has committed the 3 19 wp 9475.10.doc misconduct, as enumerated under Clauses 24(a), (c), (d), (k), (l) and (q) of the Standing Orders. In the said complaint, petitioner contended that no specific instances were mentioned in the charge-sheet, the charge-sheet was not issued by the competent person to do so, the enquiry was conducted, in violation of the principles of natural justice, the findings of the Enquiry Officer were submitted to the complainant. He has submitted a Complaint, on the basis of the said findings. The said complaint was decided by the Labour Court by its Judgment and order dated 15th July, 1996 and dismissed the same. However, the Labour Court, Pune directed the respondent that if he intends to impose any major punishment that of dismissal or discharge in that not to impose the punishment till 22nd July, 1996 i.e. expiry of the seven days from the date of judgment. At the time of deciding the said Complaint, the Labour Court framed following five issues: “ Issues: Findings: 1 Does complainant prove that Yes vide order enquiry held against him was dated 29-3-96. not fair proper and in accordance with the principles of natural justice? 2 Whether the complainant has No proved and established unfair 4 19 wp 9475.10.doc labour practices on the part of the respondent as alleged under item 1 of Schedule IV of the Act? 3 Whether the misconduct is Yes established on the basis of the evidence in the enquiry and/or before the Court? 4 Whether the complainant is No entitled for the declaration and reliefs as prayed or otherwise? 5 What order? As per the order.” 7 Being aggrieved by the said order, the Petitioner preferred Revision Application (ULP) No. 89 of 1996). The learned Member, Industrial Court, by its judgment dated 17th July, 1997 dismissed the Petitioner’s Revision Application. 8 Being aggrieved by the said order passed by the Member, Industrial Court, Petitioner preferred the Writ Petition No. 9475 of 2010 in this Court on 4th December, 1998. The said Writ Petition came to be dismissed. Being aggrieved by the dismissal 5 19 wp 9475.10.doc of the Writ Petition, the Petitioner preferred Letters Patent Appeal (Stamp) No.40950 of 1998. During the course of hearing, the learned counsel appearing on behalf of respondent no1- employer submitted that the Appellant has been dismissed from the service, subsequent to the decision of the learned Single Judge in the Writ Petition. 9 The Division Bench of this court, by its order dated 11th April, 2005 allowed the petitioner to withdraw the Letters Patent Appeal with liberty to take out appropriate proceedings. The Division Bench in their order dated 11th April, 2005 clarified that the impugned orders shall not come in the way of the appellant in challenging his dismissal from the services in the appropriate proceeding in accordance with law. Paragraph no.3 of the said order dated 11th April, 2005 passed by the Division Bench in Letters Patent Appeal reads thus: “3. During the course of motion hearing, the learned counsel for respondent No.1-employer submitted that the appellant has been dismissed from service subsequent to the decision of the learned Single Judge in the writ petition. This fact is not disputed by the learned counsel for the appellant. In view of the fact that the appellant has 6 19 wp 9475.10.doc been dismissed from service, he has to pursue the appropriate proceedings in challenging the said dismissal. In this view of the matter, the complaint filed by the appellant apprehending his dismissal does not survive. We clarify that the impugned orders shall not come in the way of the appellant in challenging his dismissal from service in appropriate proceedings in accordance with law.” 10 Thereafter, Petitioner on 4th June, 2005 raised Reference under section 2A of the Industrial Disputes Act, 1947. The appropriate Government was pleased to refer the matter to the Labour Court for an adjudication of an order dated 2nd July, 2005. On 23rd January, 2006 a statement of claim was filed by the Petitioner before the Labour Court at Pune in a Reference (IDA) No. 433 of 2005. Thereafter, the respondent-employer filed a written statement dated 30th August, 2006. 11 On the basis of statement of claim and written statement filed by the parties, the Labour Court framed issues on 3rd March, 2009 at Exhibit 16. Those issues are as under: “1 Whether the decision of Second Labour Court, Pune dated 15/7/96 in Com. ULP No.227/95 operates as res judicata? If yes to what Extent? 7 19 wp 9475.10.doc 2 Whether the reliefs claimed in this reference are barred in view of provisions of sec. 59 of the MRTU & PULP Act? If yes, to what Extent? 3 Whether the Second Party prove that Company Secretary Shri A.N.Navre has no authority to issue termination letter? 4 Whether the misconduct is proved by acceptable evidence in enquiry? 5 Whether the Punishment imposed is shockingly disproportionate to the misconduct proved? 6 Whether the Second Party prove that his services are terminated illegally on 1.8.96 on enquiry? 7 Whether the Complainant is entitled to the relief of reinstatement as claimed? 8 Whether Complainant is entitled to back-wages as claimed? 9 What order?” 12 Thereafter, the respondent-employer preferred an application for framing preliminary issues at Exhibit 17 8 19 wp 9475.10.doc requesting to frame preliminary issues, so far as issue nos.1 and 2 are concerned. The said application was allowed by the learned Judge, 1st Labour Court, Pune by an order dated 3rd November, 2009 below Exhibit 17. After hearing both the sides, the 1st Labour Court, Pune held that so far as the issue no.4 in that proceeding amounts to a res judicata and cannot be re-agitated against the issue no.4, which reads thus: “4 Whether the misconduct is proved by acceptable evidence in enquiry?” 13 This order was challenged by the Petitioner in this Petition. The learned counsel appearing on behalf of Petitioner submits that the learned Judge, 1st Labour Court, Pune failed to take into consideration that during the pendency of the Letters Patent Appeal, the services of the Petitioner were terminated and, therefore, the Division Bench has observed that the Complaint of the Petitioner apprehending dismissal does not survive and, therefore, by reserving the right of the Petitioner to challenge the order of dismissal in appropriate proceedings in accordance with law, and, therefore, there cannot be a res judicata in the subsequent proceeding filed before the Labour Court. Thus, the learned Judge, 1st Labour Court, Pune 9 19 wp 9475.10.doc ought not to have reached the conclusion that in the subsequent Reference, the issue no.4 is barred by a res judicata. In the earlier complaint, the order of dismissal was not challenged and, therefore, the order of dismissal was not directly or substantially in issue in the earlier Complaint and, therefore, the Labour Court was not right in coming to the conclusion that it was barred by res judicata. 14 He further submits that the learned Judge, 1st Labour Court, Pune failed to take into consideration that the order of dismissal was not put into contest when the earlier Complaint was filed before the Labour Court. It is also not the case that the dismissal order was challenged by the Petitioner earlier. In view of the order of the Division Bench granting liberty to the Petitioner to take appropriate proceedings against his dismissal order, there is no bar against the Petitioner on the principle of res judicata and that matter continues to be res integra and can be agitated in the subsequent legal proceeding for which liberty was granted to him by the Division Bench. 15 He submits that the Division Bench of this Court at the time of passing of the order dated 11th April, 2005 specifically held that the impugned order shall not come in the way of the 10 19 wp 9475.10.doc Petitioner in challenging his dismissal from service in appropriate proceeding in accordance with law. The learned counsel appearing on behalf of the Petitioner in support of his contention relies on the judgment in the matter of Hindustan Petroleum Corporation Ltd. vs. Yeshwant Redkar and another reported in 2004-III-LLJ 877. In that case, our High Court held that the principle of res judicata cannot apply to the case of non-contest as regards certain order in earlier proceeding when it becomes subject matter of contest in the subsequent petition. Paragraph no.22 of the said judgment reads as under: “22 What we find in this matter is that the order passed by the earlier Division Bench pointed out the error on the part of the Respondent No.1 in challenging only the original order. It was, therefore, that they had dismissed the writ petition. It impliedly indicated an expectation that the Respondent No.1 should challenge the appellate order in case he was aggrieved by his dismissal. This expectation was bordering into an opportunity to take recourse to such an action. It is this order which is left undisturbed by the Apex Court and the Apex Court has allowed the S.L.P. to be withdrawn with liberty to avail of another remedy. In our view, the order passed by the 11 19 wp 9475.10.doc Division Bench earlier as well as the order passed by the Apex Court would not be read as non-suiting the Respondent No.1 since the orders of the Courts are not expected to cause injustice. In the circumstances, we reject the submission of Mr. Cama that the learned single Judge had erred in not applying the principles analogous to res judicata.” 16 On the basis of this submission, learned counsel appearing on behalf of Petitioner submits that the impugned order dated 31st July, 2010 passed by the learned Judge, 1st Labour Court, Pune in Reference (IDA) No. 433 of 2005 cannot be sustained in law and same is liable to be set aside. 17 On the other hand, the learned counsel appearing on behalf of respondent-employer vehemently opposed the present writ petition. He submits that the doctrine of merger is applicable in the present case. He submits that originally the Petitioner filed Complaint challenging the charge-sheet and enquiry was conducted by them before pronouncing any punishment. The said Complaint was dismissed by the Labour Court. Against the said dismissal, the Petitioner preferred Revision before the Industrial Court, the same was dismissed by the Industrial Court also. Thereafter, the Petitioner preferred 12 19 wp 9475.10.doc the Writ Petition No.287 of 2003, same came to be dismissed. Against the said dismissal of the Writ Petition, the Petitioner preferred Letters Patent Appeal (Stamp) No.40950 of 1998. In the said Letters Patent Appeal, the Division Bench of this Court held that in view of the dismissal of the Petitioner from service subsequent to the decision of the learned single Judge in Writ Petition, the Complaint filed by the Petitioner apprehending his dismissal does not survive. This shows that the Division Bench confirmed the order passed by the Labour Court in previous Complaint (ULP) No. 277 of 1995 dated 15th July, 1996 and Judgment and order dated 17th July, 1997 passed by the learned Member, Industrial Court in Revision Application (ULP) No.89 of 1996. He submits that the issue no.4 i.e. “Whether the misconduct is proved by acceptable evidence in enquiry?” decided in favour of respondent by the Labour Court by framing issue no.3 in previous Complaint (ULP) No.277 of 1995 which reads thus: “3 Whether the misconduct is established on the basis of the evidence in the enquiry and/or before the Court?” 18 On the basis of these submissions, the learned counsel appearing on behalf of respondent submits that the 1st Labour 13 19 wp 9475.10.doc Court, Pune by its order dated 31st November, 2010 rightly held that the issue no.4 was directly and substantially in issue in the present proceeding viz; “Whether the misconduct is proved by acceptable evidence in enquiry?” and was heard and finally decided by the Labour Court in Complaint (ULP) No.277 of 1995. It was directly and substantially in issue in that proceeding between the same parties, litigating under the same title and the said issue was decided by the Court competent to try and decide the same, it cannot be re-agitated on the principle of res judicata in the present Complaint. Thus, he submits that there is no substance in the present Writ Petition. 19 I have gone through the papers and proceedings of previous Writ Petition No.9475 of 2010, judgment dated 15th July, 1996 passed by the Second Labour Court in Pune in previous Complaint (ULP) No.277 of 1995 and judgment of Industrial Court dated 17th July, 1997 in Revision Application (ULP) No. 89 of 1996 as produced by the Petitioner by way of additional compilation of documents. It is admitted fact that initially the Petitioner challenged the enquiry proceeding before the Labour Court, Pune before passing any final order by the respondent-employer. In that proceeding, the issue of termination was not involved. The Petitioner learnt about the 14 19 wp 9475.10.doc dismissal order during the course of hearing of Letters Patent Appeal. As soon as the Petitioner learnt about the dismissal order, he sought liberty of this Court to challenge the same in an appropriate proceeding. Considering the facts and circumstances of the present case, the Division Bench of this Court in Letters Patent Appeal by an order dated 11th April, 2005 granted liberty to the Petitioner to challenge the dismissal order in appropriate proceeding in accordance with law. The Division Bench also observed in the order dated 11th April, 2005 that the impugned order in those proceedings shall not come in the way of the Petitioner in challenging his dismissal order from service in appropriate proceeding in accordance with law. This itself shows that the Division Bench granted liberty to the Petitioner to challenge his dismissal order on all grounds available in law. 20 The contentions raised by the learned counsel appearing on behalf of respondent about the merger of order is not sustainable on the facts and circumstances of the present case, when the Division Bench of this Court specifically passed order granting liberty to the Petitioner to challenge his dismissal order according to law with observation that previous order shall not come in his way shows that the Labour Court should proceed 15 19 wp 9475.10.doc with the Complaint as a fresh Complaint without being influenced and/or considering the previous judgment passed by Labour Court as well as Industrial Court in the Complaint and Revision Application filed by the Petitioner earlier. Even this Court in the matter of Hindustan Petroleum Corporation (supra) held that the employee cannot be non-suited if the particular issue was not subject matter of previous litigation. 21 Considering the order passed by the Division Bench of this Court in Letters Patent Appeal dated 11th April, 2005 and the judgment in the matter of Hindustan Petroleum Ltd. (supra) the 1st Labour Court, Pune erred in coming to the conclusion that the decision on the issue no.4 operated as res judicata and it could not be re-agitated in that court. Therefore, the impugned order dated 31st July, 2010 passed by the learned Judge, 1st Labour Court, Pune in Reference (IDA) No. 433 of 2005 is set aside. The Application filed by the Respondent dated 30th August, 2009 for framing preliminary issue stands rejected. 22 The 1st Labour Court, Pune is directed to hear the Reference (IDA) No. 433 of 2005 afresh on all issues as framed below Exhibit 16, dated 3rd March, 2009. 16 19 wp 9475.10.doc 23 Considering the facts and circumstances of the present case, no order as to costs. 24 The learned counsel appearing on behalf of respondent prayed to stay the operation and implementation of this order for two weeks after summer vacation. 25 Considering his request, the operation and implementation of the present order is stayed till 20th June, 2011. (K.K.Tated, J.)