IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.5102 of 1998 Date of decision: 17.08.2009 Punjab Agro Industries Corporation Ltd. …Petitioner versus Presiding Officer, Labour Court, Ludhiana and another ...Respondents CORAM: HON’BLE MR. JUSTICE K.KANNAN Present: Mr. Rahul Sharma, Advocate, for the petitioner. Mr. K.S.Hissowal, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. K.Kannan, J.(Oral) 1. The writ petition challenges the award of the Labour Court entitling the workman to obtain full back wages from the date of termination namely on 02.03.1983 till the date of his superannuation on 27.01.1986 and he was found entitled of one month's average pay for every year of completed service since 02.03.1983 to 27.01.1986. 2. The learned counsel appearing for the management has three objections to the award: first, the termination was of the year 1983 and the reference had been sought in the year 1991, therefore, there was extraordinary delay. Secondly, the workman himself had filed an earlier demand notice on 09.03.1983 soon after his termination and a reference had also been made before the Labour Court. However, he withdrew the reference on the ground that the name of the employer had been wrongly made and he had obtained fresh reference with reference to the correct Civil Writ Petition No.5102 of 1998 - 2 - employer. The learned counsel's objection is that it was not shown that the the Labour Court which permitted the workman to withdraw had granted any liberty to him to file a fresh petition. The workman must be taken to have therefore abandoned his right by application under Order 23 Rule 1 CPC. Thirdly, the objection was in the nature of relief which the Labour Court granted, providing for back wages and also some additional compensation, which had no legal basis. 3. The learned counsel appearing for the workman states that the workman himself had expired and his legal representatives had been added and the first petition was withdrawn only when it was found that the case had been filed against a wrong party. Although the learned counsel for the management states that the workman cannot set up his own negligence for his benefit, I have not the records before me to ascertain either way whether there had been a mistake in the description of the management and whether the workman was justified in withdrawing the case. It is also not seen from the records whether any permission had been granted for filing a fresh case. Only such facts as are available in the award of the Labour Court itself could guide to a decision and it is not at least seen from the award that the first reference had been made against some other party or against the same party- management. With no details available, I would venture to go with the finding given in the Labour Court that if there was a delay it was on account of the prosecution of the case against the wrong party and that a fresh petition was required to be made after describing the name of the party correctly. Civil Writ Petition No.5102 of 1998 - 3 - 4. A plea of abandonment again is a technical plea which shall be permissible if there had been such contentions made in the pleadings. I find from the award that the Labour Court has taken up the issue relating to the consideration whether the departmental enquiry had been fair and proper and it had held that the enquiry was not fair. The plea of res judicata is wholly a different plea and it is available only if the earlier proceedings had been between the very same parties on identical issues and an adjudication had been on merits. A plea of abandonment is wholly different and founded on a different principle mentioned under Order 23 Rule 1 CPC. Even in regular civil matters to which the provisions of the Civil Procedure Code are applicable, the plea available of abandonment shall be taken specifically and an issue shall also be framed with reference to the same. Evidently, there was no such issue, there being no specific pleading to such an affair. The plea of abandonment, therefore, cannot avail for the management before this Court. The Hon'ble Supreme Court also held in Haryana State Cooperation Land Development Bank Versus Neelam-(2005) 5 SCC 91, that withdrawal of writ petition and prosecuting an industrial adjudication in Labour Court on the same issue will not be barred by the principles of Order 23 Rule 1 CPC. The said principle will govern the present situation also. 5. As regards the relief which was granted, the learned counsel states that there is no basis for awarding back wages even without any proof that he had been gainfully employed during the period. I have not benefit of the records of the Labour Court to ascertain the nature of Civil Writ Petition No.5102 of 1998 - 4 - evidence but the award providing for back wages in such a situation where the workman had also expired and when the prosecution of the case is made through the legal representatives, I deem it not a fit case to interfere of the discretion already exercised by the Labour Court. However, the provision for compensation for every year of completed service in addition to back wages does not appear to be made on any acceptable legal basis. The award of the Labour Court to that extent alone was required to be modified and the legal representatives of the deceased workman shall not be entitled to any more than the back wages for the period from 02.03.1983 to 27.01.1986, the date when the workman would have been superannuated if he had been in service. 5. With the above modification, the award of the Labour Court is confirmed. The writ petition is disposed of in the above terms. (K.KANNAN) JUDGE 17.08.2009 sanjeev