C.W.P. No.10646 of 2003 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH
C.W.P. No.10646 of 2003
Date of Decision: 13.11.2009
Mohinder Singh .....Petitioner
Versus
State of Haryana and others ......Respondents
Present: Mr. Ramesh Chopra, Advocate
for the petitioner.
Mr. D.S. Nalwa, Addl. A.G., Haryan
for respondent Nos.1 and 2.
Mr. Aman Chaudhary, Advocate
for respondent Nos.3 to 5.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
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K. KANNAN J.(ORAL)
1. The writ petition challenges the rejection of reference
sought before the Government, which while disposing of the plea
of the workman had stated cryptically that the reference was not
possible since the workman had availed of remedy before a Civil
Court where he failed. The suit admittedly had been filed by the
petitioner as a plaintiff in Civil Suit No.375 of 1998 instituted
before the Civil Judge (Senior Division), Panchkula. The point
urged before the Civil Court was whether the termination effected
on 14.07.1998 by the Principal of the DAV School was illegal, null
and void and whether the plaintiff was entitled to the consequential
benefits. He also applied for the relief of mandatory injunction.
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Although the jurisdiction of the Civil Court to grant the relief was
taken by the management in the written statement and a specific
issue had also been framed, admittedly no argument was urged
relating to the jurisdiction of the Civil Court and specifically
recorded so, by the Court. The issue, therefore, came to be decided
on the legality of the termination of services. The Civil Court on
consideration of the points urged on behalf of the respective parties
found that the termination was not bad in the manner urged by the
plaintiff, he was found not entitled to the relief sought for. In such
a situation, the decision between the parties had become final and
there was no further scope for a party to re-agitate the issue by
seeking for a reference.
2. Learned counsel appearing for the workman before me
refers to an observation made in the Civil Court judgment where it
was held that the contract of personnel service cannot be
specifically enforced and the remedy of a person is only to claim
damages. These observations, according to him, meant that the
Civil Court was treating itself as not competent to grant relief
sought for by him. The plaintiff, who opts for a remedy and then
urges on the legality of his termination, is deemed to have elected
to a remedy, which is competent. It is one thing to state that the
Civil Court completely lacked jurisdiction, in which the
assumption of jurisdiction and judgment would be non est and
void. It is quite another that the Court finds it has jurisdiction but
holds that the plaintiff is competent to obtain the relief. Where the
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issue of jurisdiction was never taken, although taken but not urged
by the defendant and the Civil Court was, therefore, deciding only
on the legality of termination of services, the plaintiff cannot
reopen the issue by treating the dispute as falling within the
industrial realm of adjudication before the Labour Court. The
learned counsel refers to several decisions which highlight the
issue with reference to whether a judgment of a Civil Court will
constitute re judicata if the issue to be decided fell within the four
corners of “dispute” before the Labour Court only. Cases where
Courts have held that they did not have jurisdiction to decide
industrial disputes are instances where parties are indeed deflected
to obtain adjudication before the machineries provides under
Industrial Disputes Act. Where on the merits of the termination,
there is already an adjudication before a Civil Court and it had also
become final, the plaintiff, who failed to have the adjudication in
his favour relating to his termination of service before the Civil
Court is estopped from urging that the decision of the Civil Court
will not bind him. The judgment of the Civil Court is not to be
treated to be as non est; it is verily an adjudication that will bind.
The reference sought for was untenable and the decision of the
Government not to make the reference was justified.
3. The writ petition is devoid of merit and dismissed as
such. No costs.
(K. KANNAN)
JUDGE
November 13, 2009
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Pankaj*