ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 12089 OF 2007 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Orissa Mining Corporation Ltd. …… Petitioner -Versus- Basanta Kumar Mohapatra & another …… Opp. Parties For petitioner : M/s. Akhilendra Kumar Mohapatra, A.K. Panigrahi, R.C. Sahoo, J.M. Rout, S.K. Nayak & B.P. Behera. For opp. parties : M/s. Prasanta Kumar Jena A.K. Sahu and D.P. Mohapatra (O.P. No.1) ------------------------------ Date of Judgment: 01.11. 2010 ------------------------------ P R E S E N T: THE HONOURABLE SHRI JUSTICE M.M.DAS --------------------------------------------------------------------------------------------------------- - M.M. Das, J. The Orissa Mining Corporation Limited (for short ‘the OMC’) (Management) has filed the present writ application assailing the award dated 30.03.2007 passed by the learned Central Government Industrial Tribunal-cum-Labour Court (for short ‘the Tribunal’) vide Annexure-4 to the writ petition in Tr. I.D. Case No. 104 of 2001 in favour of the opposite party no.1 (workman). During the course of hearing of this writ application, the questions raised by Mr. Mohapatra, learned counsel for the petitioner were that the impugned award is passed beyond the power and authority conferred on the learned Tribunal and further the said award is an infraction of the order dated 26.11.1992 passed by this Court in an earlier writ application being O.J.C. No. 8000 of 1992 filed by the opposite party no.1 and that the impugned award is hit by the principles of res-judicata, as the order passed in the said writ petition will operate as res-judicata. 2. It appears that O.J.C. No. 8000 of 1992 was filed by the workman before this Court, seeking to quash an interview conducted by the present writ petitioner, who was opposite party no.1 in the said writ petition and to direct to allow the petitioner to join in his post (Store Issuer) as a regular employee of the Orissa Mining Corporation Limited and for a declaration that he is entitled to full pay, which is applicable to the post of regular Store Keeper but not as an unskilled labourer. It was also prayed that the opposite parties be directed to accept the joining report of the petitioner therein (Opp. Party No.1 in this writ petition) from 01.02.1992 and regularize his service from the date of his joining. The said writ petition was disposed of on 26.11.1992 with the following order:- “The petitioner was an employee of Orissa Mining Corporation. He was being appointed from time to time and the last appointment order is at Annexure-7 dated 16.8.1988 by which he was offered a “temporary weekly post” of Store Issuer. When the case came up for admission on 9.11.1992, we desired to be enlightened as to what is meant by “weekly post” of which mention has been made in Annexure-7 and the right conferred on the petitioner by this annexure. Shri Mohapatra was asked to receive instructions in this regard, but he has not been able to find out what is the significance of the words “weekly post" 2 2. The petitioner first came to be so appointed on 21.9.1987 and so he had worked for about a year by the time Annexure-7 was issued. On these broad facts, we are not satisfied about the entitlement of the petitioner to continue beyond the period under Annexure-7 and we dispose of this petition by stating that if any suitable post shall be available in Orissa Mining Corporation, the same shall be made available to the petitioner on his filing proper representation and on the authorities being satisfied about the eligibility of the petitioner. At this stage it is stated by Shri Mohapatra that the post of a Store Issuer is lying vacant for which the petitioner was called for interview. This being the position, there is nothing to doubt that if the petitioner would be found the most suitable candidate, he would be appointed, if the Corporation would feel the necessity of filling up of the post. 3. The writ application is disposed of with these observations.” 3. It would be profitable to mention that the said writ application was disposed of at the time of admission before issuance of notice to the opposite parties granting liberty to the petitioner to file a representation before the authorities. 4. Learned counsel for the opposite party-workman, therefore, contended that a prima facie view was taken by this Court that the Court is not satisfied about the entitlements of the petitioner to continue beyond the period under Annexure-7 i.e. the order of appointment of the petitioner on “weekly post” dated 16.08.1988 and did not go into the merits of the case as well as the right of the workman against illegal retrenchment, which can only be determined by the Labour/Industrial court excepting some exceptional cases. 5. Learned counsel for the petitioner, however, urged that this Court having recorded that it is not satisfied that the petitioner was entitled to continue beyond the period under Annexure-7, the said 3 finding operates as res-judicata and the petitioner is prevented under law to raise the same question in an industrial dispute. 6. But, however, if the first paragraph of the order dated 26.11.1992 passed in O.J.C. No. 8000 of 1992 is referred to, it would be clear that this Court at the stage of admission of the writ petition, took cognizance of the fact that the petitioner was an employee of Orissa Mining Corporation and was being appointed from time to time and the last appointment order was at Annexure-7 dated 16.08.1988 by which, he was offered a “temporary weekly post” of Store Issuer. This Court further recorded that when the matter was taken up on 09.11.1992, the Court desired to be enlightened as to what is meant by “weekly post”, of which, mention has been made in Annexure-7 and the right conferred on the petitioner by the said annexure. Shri Mohapatra was asked to receive instruction in that regard, but he was not able to find out what is the significance of the words “weekly post”. 7. It is clear that neither any counter affidavit was filed in the previous writ petition by the OMC nor any issue was raised before this Court with regard to the right of the petitioner to agitate his claim under the Industrial Law. This Court, therefore, is of the considered view that the well known principle of res-judicata has no application to the facts of the present case. This view is further fortified by the decision of this Court in the case of M/s. MESCO Kalinga Steel Limited v. Orissa Industrial Infrastructure Development 4 Corporation and others 2007, (Suppl.-II) OLR – 1021 where this Court referring to various judgments of the apex Court, laid down that as per the settled principles of law, if, a party has choosen not to take a plea of res-judicata before the trial court in his pleading, he cannot raise the same before the appellate court. In this case, the OMC nowhere in their written statement filed before the learned trial court has raised the question of res-judicata, though the order dated 26.11.1992 passed in O.J.C. No. 8000 of 1992 was exhibited as Ext. G before the said Tribunal. 8. It would be further pertinent to mention that the plea of a case being hit by the principles of res-judicata is to be specifically taken in the pleading of a party and it would be incumbent upon such party to bring into the evidence the pleadings of the parties in the previously instituted lis the judgment of which is alleged to operate as res-judicata along with the judgment passed in the previous lis for a Court to appreciate as to whether a proceeding/case is hit by the principles of res-judicata or not. 9. The impugned award culminated from a reference made under Clause– (d) of sub-section- (1) and sub-section- (2) (A) of Section- 10 of the Industrial Disputes Act, 1947 by the Government of India in its Ministry of Labour on 30.10.1995. The reference made was as follows :- “Whether the action of the Management of OMC Ltd., in terminating the service of workman Shri B.K. Mohapatra, Ex-Store Issuer of Kathpal Chromite Mines without 5 following the principles of natural justice as well as the provisions of the Certified Standing Orders is justified ? If not, to what relief the workman is entitled to ?” 10. It is well settled that if the conclusion arrived at by the learned Tribunal/Labour court is reasonable and is on the basis of the materials available on record, even though different views can be taken on the said materials, the High Court in its exercise of writ jurisdiction should not interfere with the said findings/conclusion like an appellate court. In the present case, both, the management as well as the workman have relied upon applicability of the certified standing order before the Tribunal. While the workman claimed action of the management in not allowing him to join in his duty after recovery from illness tantamounts to refusal of employment in violation of the standing order as well as violation of section 25F of the I.D. Act, the management took the stand that the workman has voluntarily abounded his job as per certified standing order and the said views has been dealt in paragraphs 2 and 3 of the impugned award. By considering the rival claims of the parties, the learned Tribunal in paragraph – 7 of the award, came to the conclusion that from the evidence of the management witness, the standing order is squarely applicable to the workman and Rule 14(3) of the standing order deals with loss of lien of a workman but from the conduct of the management it can not be held that the workman has already lost his lien by the time he intended to join on 04.02.1992. In paragraph – 8 of the award, the learned Tribunal came to the finding that the workman though 6 issued show cause notices on 09.01.89 and 06.04.89 but, he was not charge sheeted nor issued any termination letter as per the standing order till he reported for his duty on 04.02.1992, which is illegal. The learned Tribunal also in paragraph – 9 disbelieved the stand of the management that it had received no communication from the workman regarding leave. Most importantly in paragraph – 10 of the impugned award, the learned Tribunal found that admittedly the workman has been refused employment without departmental inquiry as envisaged under the standing order for which the entire action of management is bound to be vitiated. Basing upon such findings, the learned Tribunal directed reinstatement of the workman in his former post with full back wages and other service benefits as applicable to an employee belonging to his cadre. 11. Since the award so made is reasonable basing upon material evidence on record it can not be interfered with by this Court in exercise of its power under Article 227 of the Constitution of India. (See S.R. Tamma v. I.D.L. Chemicals Ltd. & another, 101 (2006) CLT 553, Government of Orissa & others v. Prafulla Kumar Patnaik & others, 100 (2005) CLT 100, A.P. Foods v. S. Samuel & others, 102 (2006) CLT 374 (SC) and Uttaranchal Forest Development Corpn. and another v. Jabar Singh & others (2007) 2 SCC 112. 7 12. In view of the above, this Court is not inclined to interfere with the impugned award and the writ petition being devoid of merit, is dismissed, but in the circumstances without cost. ………………….. M.M. Das, J. Orissa High Court, Cuttack. November Ist , 2010/Subha 8