, ‘ . ‘ - l' INGH C/O SH ‘S RI‘ CAMP 1 € ‘ I NO.K, SECTOR 6,LB D‘ISTRICTIDURG. I- J ESPON’DEN v” INDUSTR AIP CHO L T 2 GH ' RTS: I RUR WK -‘ STEE INDIA L PLANT BHILAI THROU DISTRICT DURG [c TH DIRECTO DISTRICT PURG [C L s shown In cause tltl G] H I E E R SL TEE G A e .. ... HIGH'COURTVOF CHHATTISGARH : BILASPUR WRIT PETITION 1498 0f 2004 i Abhay Kumar Singl‘lL ‘ ) ‘ Industrial Court & Gthers. § k \PETITJioNER ‘ i ‘ i \ RESPONJjENTs i ‘ s x I v k Versus - nt ofjudg’mentv and order on 9,?fatay of January, 2010. ; 1 QnOImiceme x \ Post for pr JUDGE il/01/2010 1 I I K I J x K HIGH COURT OF CHHATTISGARH BILASPUR WRIT PETITION 1498 0f 2004 ITINER Abhay Kumar Singh. z ‘ . i K NDENTS g , Industria1 Versus Court (J Others. é (Wm petltlon under Artlcle 226/227 of the Const1tut10n of Ind1a) V 1 SB HON BLE SHRI SATISH K AGNIHOTRI J P ent Shrl Pradeep Saxena Advocate for the petlloner re t q %7 PETEd i 1 ‘ Shn Shallendra Shukla Advocate for the respondent No 2 & 3 1 ’ JUDGMENT & ORDER (Delivered on the .22. day of January, 20I0) i Thls: petmon flled under Artlcle 226/227 of the Const1tutxon of Indla seeks a wrlt/drrectlon to quash the 1mpugned order dated 19 04 2004 (Annexure P/17) passed 1n C1V11 Appeal No 184/MPIR/A 11/2000 (flled by the respondent No 2 & 3/management) whereby the appeal of the respondent No 2 & 3/management was allowed and the cross appeal flled by the pet1t1oner belng, C1v1lAppea1No l83/MPIWA—1l/2000 was1ejected The facts 1n nutshell as prOJected by the petrtloner are the petrtloner was engaged as Operator 1n the Blast Furnaces Department of the Bhllal Steel Plant/respondent No 2 and 3 The petltloner proceeded on leave wrth prlor sanction on 05.10.1991. In the meantime, the petrtloner was arrested on 17.11.1991 and was detained in jail till 26.8.1994 (Annexure P/2) when the petitioner was released on bail. Because of his arrest and detention, the petitioner was not in a position to join his duties; A show—cause-notice gto 1n1t1ate d1sc1phnary enquiry was 1ssued on 9 l 1992 (Annexure P/3) which was received by the pet1t1oner and reply to that effect was filed on 11 01 1992 (Annexure P/4) 1nform1ng the enqu1ry offlcer as well as respondent No 2 & 3/management about hls arrest hls and 1nab111ty to attend the enqu1ry. During " ' i . ; RE. L3 h1s confinement 1n Jall the petltloner made‘ several apphcatxons 24 11 1993 (Annexure P/6 A) 21 12 1993 (An exure P/6 B) and 29 6 199 (Annexure P/6 C) for grant of sub51stence allowanice to malntam h1s famlly and r dependents The respondents 2 & 3/management did not pay any heed and did. not respond to the sald representatlons When the petltloner was released on I ball onl26 O8 1994 he presented hnnself for duty but he was not pernntted to Jo1n the dunes and as such he moved representauons dated 29 6 1994 6 7 1994 and 4 8 1994 to perrmt hnn to Jom the dunes For want of response l frorn the respondents 2 & 3/management, the pet1t1oner flled an appl1cat1on under section 31(3) 34 read with section 61 of the Madhya / \ Pradesh/Chhatt1sgarh Industr1al Relat10ns Act 1960 (for short the Act 1960 ) l 1 (Annexure P/8) The petltxoner came to know about h1s terrmnatron from l l t sergvice during pendency of the case when the respondent No. 2 .c& é g : 3/rhanagement stated in its retum that the petitioner has already been termlnated The respondent No 2 & 3/management had lssued a memo dated 29 11 1991 alongwith statement of allegatlons and statement of charges for wrllful and unauthorized absence from duties frOm 5.10.1991 (Annexure P/9). The petitioner could not submit any explanation as he was in jail. The Enquiry Officer proceeded ex-parte against the petltioner wh1ch resulted into the :terminatlon of the pet1t10ner V1de order dated 23 01 1992 The petitioner withdrew his case being Case No._ 75//MPIR/94 vide‘order dated 19.05.1995 (Annexure P/l3) Thereafter in another application being 'Case N 7/MPIR/95 the Labour Court held that the departmental enquiry conducted by the respondents 2 & 3/management was bad and Vitiated as the same was l § , proceeded ex—parte V1de order dated 7.2.1997 (Annexure P/r14). Thereagainst,§ i an appeal was preferred before the Industrial Court in Miscellaneous Appea N d ls o 24/MPIR/97 by the respondents 2&3/Management which was dismisse L ‘ d 4 ? 1, o on 16 12 1998 (Annexure P/15) After hav1 conSIdered all the aspects of t ng h" matter the flnal award was passed on 24 7 2000 (Annexure P/16) 1n case No v t t 1 I 7/MPIR/95 holdmg that the termmatlon of Jervwe of the petltloner was not legal and proper It was further dlrected to irelnstate the petltloner w1th1n a perrod of 60 days Thereagalnst the respondent No 2 & 3Management preferred an appeal bemg C1V11 Appeal No l84/MPIR/A—1l/2000 agalnst the d1rect10n of relnstatement The petltloner also preferred a cross appeal bemg , §C1V11 Appeal No l83/MPIR/A-ll/2000 agarnst non grant of backwages The gappeal of the respondent No 2 & 3/management was allowed and the appeal ' tilled by the pet1t1oner was d1sm1ssed Thus th1s petltlon ' iShrr Saxena learned counsel appearlng for the petltloner would submlt that ionce the enqu1ry proceedmgs has been quashed by order dated 24 07 2000 lholdlng the petltloner gullty of w1llful absence from duty unauthorlzedly by the glndustrlal Court was contrary to the facts as there 1s no dlspute that the l; ipetltloner was arrested on 17 ll 1991 and cont1nued 1n Jall t111 ball was i granted on 26 08 1994 Even otherwrse even 1f 1t 1s held assumrng that the ‘ pet1t1oner was wrllfully and unauthorlzedly absent removal from serv1ce was a l drsproportlonate punlshment and 1n normal course punlshment of stoppage of A ' _ one or two 1ncrements for one or two years ls awarded 1n varlous cases The ndustrial court has wrongly applied the principles of res judicata as the first petltlon was w1thdrawn on account of the subsequent development and the second appllcatron was flled aga1nst the subsequent cause of actlon wh1ch the petitioner came to know during the pendency of the first case. The l1m1tatron was wrongly counted as the lllmtatlon would start from the da communlcatlon of the order not from the date of pass1ng of the order of removal ' _ On the other hand Shr1 Shukla learned counsel appearlng for the respondents f werf‘: _ 2 & 3/management would subrmt that the matenals avallable on record t roperly examlned by the Industrlal Court and there 1s no 1rregu1 r 1nf1rrn1ty warrantmg mterference by thls Courtjm exerc1se of 1ts power of _ superrntendence under Artrcle 227 of the Constlt tron of Ind1a The order dated L 1 i 24 07 2000 (Armexure P/16) passed by the Labour Court was not based on any legal ev1dence and was contrary to the well settled pr1nc1ples of law The Industrlal Court v1de 1ts order dated 19 04 2004 (Annexure P/l7) has r1ghtly held that the pleadlngs documents and the rehef 1n the prev1ously 1nst1tuted é casie Was materially andsubstantlally the same‘m the subsequent case. The peéitioher had not sought any permission of the Court to file a second petition, 3 this, the secbnd case was not maintainable. When the petitioner withdrew his first case, the petitioner knew about his termination from service. Provisionsof l t I t Or‘der;23 Rule 1(4‘) of the Code of Civil Procedure, 1908 (for short ‘the CPC’) ‘ provides that where applicant withdrawshis case without the permission of the court the appllcant is precluded from 1nst1tut1ng any fresh case 1n respect of x the same subJect matter There 1s no dlspute that the first case was Withdrawn Without seeking liberty of the Court to institute fresh case on identical facts for f the same relief The limitation for making the application is one year The petitioner even after he came to know about his termination, presented his case k after limitation of three years and there is no provision in thelAct, 1960 [for condonation of delay. The order of termination was sent to the petitioner;by - registered post on his .local as-well as permanent address for constituting; adequate notice There is no explanatlon for absence for a period from’ 5 10 1991 to 17 ll 1991 when the petitioner had gone to his Village Manihari i District Gaz1pur, Uttar Pradesh on account of illness of his brother in law Thet arrest of the petitioner took place on 17 11 1991 Leave of the petitioner was never sanctioned. Since there was. no mention of the period for. which leaveé was requested; no actionwas taken on his application which‘was sent through; some pers r l a ; l x 1 x i x i l l i a . z I l t l l i r t l ’ i on. >1; p ar1r J 5 wk ¥ Having‘ heard learned courisel appearing for the parties, perused the pleadfngs é $ 2 ‘ 4- ~ ‘ i é t § a I q y l £ l z § r J ‘ ‘ and ddcuments appended thereto and the documents placed before me, there is ‘ V g 5 ’ r no; dispute that the petitioner was arrested on 17.11.1991 and remained in j‘ail i 1 ; § t , 1 y v t till 2§.O6.1994. After receiving the show-causé—notice dated 11.01.1992, the e petitidner informed to the Enquiry Officer by letter dated 11.01.1992 (A‘nnexure P/4) that on account of h1s arrest the pet1tloner was not 1n a posmon to partlclpate 1n the enqulry proceedings The Enquiry Officer w1thout taklng i coggnizance of the intimation sent by the petitioner proceeded ex parte and suibrnitted a report holding that the petitioner was guilty of Willful and l unauthorized absence. E . The petitioner after having made several representations for permitting him to l i i x Jom the duties the petitioner preferred an application under section 31(3) 34£ read With section 61 of the Act 1960 on 02 09 1994 (Annexure P/8) which wasi registered as Case No 75/MPIW94 praying that the respondents be directed to; provide work to the petitioner, as before, With consequential benefits. The; respondents 2 & 3/management filed its written-statement (Annexure P/10)§ informing the petitioner that pursuant to the departmental enquiry, ‘thei petitioner was already terminated by order dated 23.01.1992 and the same was: served by the respondents 2 & 3/management to the petitioner by registered? post. The petitioner, after having come t0 know about his termination order,§ preferred second application under section 31(3) read with section 61 of thei A. ‘i Act,‘ 1960 seeking quashing of termination order with consequential benefits: which was registered as Case No. 7/MPIR/95 and subsequently withdrew the l The respondent 2 & ‘ 1 3/management filed its written statement (Annexure P/12) The Labour Court! Durg, after hearing the parties, by order dated 7.2.1997 came to the concluSion l l first application on 19 05 1995 (Annexure P/13) i that the enquiry held ex parte holding that the petitioner was willfully; and unauthorizedly absent which resulted into termination of the petitioner,’ was ‘ E i i l . nvalld Agamst the sald orde eferred an appeal before the Indusmal Court Ralpur bemg Mlscellaneous Appeal o 24/MPIR/97 The sald appeal o d1srmssed V1de order dated 16 12 1998 Thus the order dated 7 2 1997 l W1th ' l regard to the finding of enquiry as illegal 'and bad, was upheld. lThe Labour Court by order dated 24 07 20®O (Annexure P/16) 1n Case No s>° t / the ‘fmdings of the departlnental enquiry that the petitioner remained Willfully and unauthorizedly absent was not proper and Since the g . enquiry t was held ex parte Without affording opportunity of hearing, knowing fully well that it was not poss1b1e for the petitioner on account of being in jail t partiCipate in the enquiry, the enquiry and the findings recorded thereafter were bad Accordingly, it was held that the terminatlon order was illegal and bad ‘The enqu1ry was declared to be bad an ‘ ‘ the respondents 2 & 3/management was als l v t 7/MPIR/95 after havmg exarmned all the aspects of the matter came to the V a t l Q concluswn that i t i i tioner in ’ i improper and the respondents were directed to reinstate the peti S61‘V1CC. Thereagainst the respondents 2 & 3/management flled Civil AppealiNo. lS4/MPIR/A—l 1/2000 challenging the order of reinstatement and the petitioner )filed CiVil Appeal No 183/MPIR/A 11/2000 against the denial of backwages ;before the Industrial Court Raipur 10. The learned Industrial Court held that the petitioner ought to have itaken I permiSSion to prefer a second application as the petitioner knew regarding the I fact of his termination before filing of the ‘first application 1e case No l 75/MPIW94 thus, the second application was not maintainable under ord Rule 1(4) of the CPC The learned Industrial Court further ection 62 of the Act 1960 the limitation period is one year Th L i~ was terminated on 23.01.1992 therefore filing of application que n 12.01.1995 Twas beyond the prescribed s o ermination orde n r d pr e e t r l Thus,l the second application itself was not ma‘intainable. Further, holding of the enquiry officer that the absence of the petitipner from 5.10.1991 till he was ' released on bail was willful and unauthorized. Accordingly, the order of reinstatement passed by the Labour Court was tset as1de and the appeal of the , respondent No 2 & 3/management was allo ed The appeal filed by the § petltloner for grant of back wages was d1smlssed 11. T;he findings of the learned Industrial Court that- the second application was not: rriaintainable as the petitioner was barred from filing second application under? pfOVISlons of Order 23 Rule 1(4) of the CPC ls not tenable 1n law The prayers made 1n both the applicatlons were entlrely different In the first appllcatlon , bemg Case No 75//MPIR/94 prayer was to d1rect the respondents 2 & 3/management to perrnlt the pet1t10ner to Jom the dut1es and grant‘ consequentlal benefits In the second case belng case NO 7/MPIR/95 the; » prayer was to quash the term1nat10n order With consequential benefits The factsg may be identical but the relief‘sought for were entirely different. Cause of actlon 1n both the cases were dlfferent Thus the flndlngs of the learned l Industrral Court that the petltloner ought to have taken llberty or permlssmn of the Court before prefemng second apphcatxon 1s perverse It was not necessary to seekperm1ss1on to prefer the second appllcatlon as the second application arose from a different cause of actiOn and the relief sought for‘was; » also different. The learned Industrial Court has failed to appreciate the prinCiples of resjudicata tin proper perspective. The Supreme Court, in Sarguja Transport Service v. State Transport Appellate l2. Tribunafl, MP. Gwalior & Others], observed as under: x r “7. The Code as it now stands thus makes a distinction between ‘abandonm’ent’ of a suit and ‘Withdrawal" frornta suit with permission to file a fresh suit. It is provided that , l w f Where the plaintiff abandons a suit or withdraws from a suit‘r without tho permission, referred to in sub rule (3) of Rule 1 of Order XXIII of the Code he shall be precluded from Instituting any fresh sult 1n respect ofi such subject i matter or such part of the claim The pr1nc1ple underlymg Rule 1 of Order XXIII of the Code ls that when a plaintlff once institutes a suit int a court and thereby avails of a remedy glven to him under law he cannot be permltted to i institute a fresh suit in rgespect of the same subject-matter lagain after abandoning the earlier sult or by withdrawing 1t Without the permlss1on of the court to file fresh: suit. Incvito beneficium non damn The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will lose it. In order to prevent a litigant from abusmg the process of the court by 1nst1tut1ng sults agaln and agaln on the ‘same cause of action Without any good reason the Code insists that he should obtain the permission of the court to file , a fresh suit after establishing either of the i. two grounds mentioned in sub—rule (3) of Rule l ofOrder XXIII. The principle underlying the above rule is founded on r public policy, but it is not the same as the rule of res judicata contained in Section 11 Of‘the Code which provides that no court Shall try any suit or issue in which the matter directly or substantially in issue in a former suit between the same l parties or between parties ‘under whom they or any of them cla1m Iltlgatmg under the same tltle 1n a court competent to try such subsequent suit or the sult 1n whlch such issue has been subsequently raised and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or Withdrawal of a suit without the, permission of the court to file a fresh suit there is no prior adjudication of a suit or an issue is involved yet the Code prOVides as stated earlier that a second su1t Will not lie in sub—rule (4) of Rule l of Order XXIII of the Code when the first suit is 3. withdrawn ou e emissin ’ witht th ro referred to in sub-rule (3f in order to prevefrt court. the abuse of‘ the pilocess of the v 1 In EVDBarot v. State of Gujarat & 0thers2, the Supreme Court observed that when the matter was withdrawn to make representation, that course of action ' J i does not amount to abandonment of the matter§ In such a case, second writ petition is maintainable. The ratio laid down by the Supreme Court in Sarguja Transport Service (subra), was referred with approval in Haryana State Coop. Land Development Batik v7. Neelam3. 15. The Court below has observed that from the perusal of Exhibit D/6 and D/7, it was clear that the petitioner had information prior to flling of the first case iQe. Case No. 75/MPIR/94. Thus, it was held that the period of limitation would $ start from the date of 23.01.1992 i.e. the date of passing of the order, and not from the date of filing of written statement on 19.11.1994 wherein it was mentioned that the services of the petitioner was terminated on 23.01.1992. 1 Sub-section (i)(a) of section 62 of the Act, 1960 provides'that the proceedings _ k 6. ‘ shall be commenced within a year from the date of termination of the service of the concerned employee. There is no contemplation of the receipt of information. Further proviso- to section 62, the Labour Court has been empowered to admit any application for declaration that a change is illegal under the Act, after expiry of three months frOm the date on which such change v ‘ was made. But in case of termination wherein the limitation is one year and further 1n respect of dispute falling 1n clause (a) of paragraph (A) of sub sectlon (1) of sectlon 61 of the Act 1960 wherein the llmrtatlon 1s two years there 1s . no power With the Labour Court to consrder the suffiCiency of reasons and 1 2 (2002) 10 SCC 668 confione the delay In the case on hand lxlm‘tatlon starts from the date of z :terrrgxination not from the date of receipt of the termination order. The _ i "ternilination order was passed on 23.01.1992 d the petitioner flled application i i' ifor iquashing the termination order on 12.01.1995, .Which was beyond the eriod of limitation i:e. after three years. l 1 AH 7. iThe" Supreme Court, in Raja Ram Maize Products v. Industrial Court ofMP. & 0thers4, observed as under: “9‘. Now we have to see as to whether the case put forth before the courts falls under wh1ch (sct any) of the clauses provxded under Sectlon 62 of the Act The largest perlod of limitation , prescrlbed therem is two years and 1n cases of termination of service and other identical matters lesser period of limitation has been prescribed. i , Therefore, even taking that two years’ period from the date of the dispute either taking the date on which when they were refused work when’they made a demand that they should be allowed to do work with Dushyant Kumar or when they made a demand after the order made by the Labour Court on an interim application directing them to resume . work or calling off the strike, the ‘ application filed are beyond the period of limitatlon prescrlbed under Sectlon 62 of the Act ” a t t 1 t t 18. Further, in Commissioner ofCustoms & Cerztral Excise v. Hortgb India Rrivczite Limited & another5, it was observed as under: t “35 In other words the applicability of the prov1510ns of the L1m1tat10n Act therefore 1s to be Judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of the reference application to the High Court " _ 19 In the present case 1t is not a case of the petitioner that the prOViSions xof Limitation Act, 1963 is applicable to the provisionsof the Act, 1960. , r i x t 4 (2001) 4 scc 492 5 (2009) 5 scc 791 , I , l 11 i \ é 20 ‘ i For the reasons ment1oned herelnabove the fmdmg of the Industrlal courtt ~é the second apphcatlon, belng Case No 7 FIR/95, filed on 12.01.1995 gs f 1 i beyond the perlod of 11m1tat10n as the same was filed after a perlod of about 3 i 3 y years As held 1n the precedlng paras 1t 1s well settled that the Labour Court i under prov1srons of sectlon 62 of the Act 1960 has no power to condone the \ d lay in case of termination. Even otherwisfe, the Labour Court has not gone Into the aspect of llmltatlon Thus the observatlon of the Industrlal Court 1n respect of appllcatlon of prlnc1ples of res judzcata 1s set aSIde However the t : l l l z 1 t 1% x findlng of the Industrlal Court m respect of f111ng 0f the appllcatron beyond the Th writ petition is accordingly dismissed. 1 l l 22. There shall be no order asto costs l x t l hmltatlon perlod ls upheld l t Sd/- Sau'sh K. Agnihou'i rm A m,‘ Judge ‘21.