JUDGMENT
1. Sri Bagadi Vykunta Rao was appointed by Willard India Limited, Calcutta as a Mechanical Maintenance Overseer on 8th November 1971 on a salary of Rs. 725/- per month. The Chittivasa Jute Mills, which forms a division of Willard India Limited, confirmed his services on 26th June 1972 with effect from 1st April 1972 fixing his salary at Rs. 765/- per month. Later on, Jute mills granted ad hoc increments to the Mechanical Maintenance Overseer. By the end of 1979, his salary was fixed at Rs. 1500/- per month. Alleging that his services were wrongly terminated by issuing a memo dated 9th February 1983 with immediate effect offering one month’s salary in lieu of notice and that no explanation was called for from him and no enquiry was conducted, he filed O.S. No. 299 of 1983 on the file of Principal Subordinate Judge, Visakhapatnam seeking the reliefs of reinstatement in service, damages or compensation of Rs. 3,00,000/- and some others reliefs. He shall hereinafter be referred to as ‘the employee.’
2. Chittivalasa Jute Mills, which is the defendant in the suit, contested the suit on the grounds that the employee’s performance was found to be most unsatisfactory and his behaviour was insolent; that he was warned and cautioned verbally many times by the Chief Mill Manager; that in view of his persistent indifference towards his work, he was not sanctioned any increment in 1981; that the defendant never guaranteed any fixed tenure to the plaintiff; that the services of the employee were terminated in exercise of the unrestricted right to repudiate the contract of service and terminate the services of an employee and that the suit is barred under Sections 14 and 34 of the Specific Relief Act. The defendant which is Chittivalasa Jute Mills will hereinafter be referred to as ‘the Company.’
3. The learned Subordinate Judge. Visakhapatnam who tried the suit held that the Civil Court has jurisdiction to entertain the suit; that Ex. A-1 appointment orders does not contain any specific condition that the services of the employee could be terminated at any time with one month’s notice; that the services of the plaintiff were confirmed soon after the probation period was over; that no other document has been filed by the defendant company to support the conclusion arrived at by the management as mentioned Ex. A-3; that from the evidence of P.W. 1 it is quite clear that there is no specific stipulation in writing about the mode of termination of services of an employee; that there were no charge memos issued to the employee prior to Ex. A-3; that in the absence of stipulation in Ex. A-1 or A-2 relating to the mode of termination of services, the action of the defendant (Company) terminating the services of the plaintiff after tendering one month’s pay in lieu of notice is not at all valid in law; that the case on hand will not come either under Art. 311 of the Constitution or under Industrial Disputes Act and that, therefore, the question of reinstatement will not arise and that because of Section 42 and 21(b) of Specific Relief Act, it is not permissible to the Civil Court to grant declaration to the employee that he continues to be in service. While holding that the termination of service of the plaintiff under Ex. A-3 cannot be said to be ab initio void, the learned Subordinate Judge. Visakhapatnam held that yet it can be said that it is wrongful dismissal of the plaintiff and that the plaintiff is not entitled to reinstatement, but he is entitled only for damages in the alternative. The learned Sub ordinate Judge fixed the quantum of damages at Rs. 54,000/- together with interest at 12% per annum from the date suit till the date of payment in addition to the amount of Rs. 4,603-64 ps. which was liable to paid to the employee as per Ex. B-1.
4. Subsequent to the dismissal of the suit, the employee moved the Deputy Commissioner of Labour, Visakhapatnam claiming that he comes within the definition of “workman” as defined under Section 2(s) of the Industrial Disputes Act (hereinafter referred to as ‘the Act’) and complaining of his wrongful dismissal which has resulted in the Deputy Commissioner of Labour, Visakhapatnam referring the dispute as I.D. No. 11 of 1987. The Company opposed the industrial dispute alleging that the employee is not a workman within meaning of Section 2(s) of the Act; that he was part and parcel of managerial and supervisory staff of the Company; that he was only guiding, instructing and controlling the technical and non-technical personnel working under him to ensure proper working and upkeep of the machinery and that the Labour Court cannot entertain the dispute for want of jurisdiction. It is further alleged that the employee is estopped from invoking the provisions of the Act as he chose the jurisdiction of Civil Court earlier by filing O.S. No. 299 of 1983 in the Court of Principal Subordinate Judge, Visakhapatnam seeking the reliefs of reinstatement or in the alternative for damages and that the Judgment of the Civil Court operates as res judicata.
5. The industrial dispute was also keenly contested and the learned Presiding Officer of the Labour Court held that the employee is a workman as defined under Section 2(s) of the Act; that he is entitled to invoke the jurisdiction of the Labour Court under the Act inspite of the fact that he had approached the Civil Court for reinstatement and damages, and obtained a decree only for damages; that it is always open to the employee to enforce the decree for damages for wrongful dismissal and that he is not entitled for any back wages. Basing on those findings, the learned Presiding Officer of the Labour Court held that the employee is entitled for reinstatement with continuity of service, but without back wages or monetary benefits from the date of termination till the date of reinstatement.
6. Aggrieved buy the award passed by the Presiding Officer of Labour Court, Visakhapatnam, the employee filed W.P. No. 10648 of 1988 claiming backwages and other monetary benefits and the Company filed W.P. 10067 of 1988 challenging the decision of the Labour Court regarding reinstatement of the employee.
7. The questions of fact and law arising in all the three cases being common, all the three cases are being disposed of together by a common Judgment.
8. The following facts are not in dispute. By Ex. W-1 letter dated 8th November 1971 the employee was offered employment as Mechanical Maintenance Overseer. By Ex. W-2 letter dated 26th June 1972 he was confirmed in service with effect from 1st April 1972. At the time of termination of service by notice dated 9th February 1983 he was working in Winding and Beaming Department where there are 10 cop winding machines, 12 spool winding machines and 12 beam-machines. The employee was working in general shift from 6 a.m. to 11 a.m. and 2 p.m. to 5 p.m.
9. the first contention put forth by the learned counsel for the Company is that the employee having gone to Civil Court being conscious of the fact that he is not a workman and sought the reliefs of reinstatement and damages, the findings of the Civil Court operate as res judtcata, even though the Civil Court has granted only the relief of damages. The employee who argued the case in person submitted that when he had approached senior advocate at Visakhapatnam, he was advised to file a civil suit; that he is a layman without any knowledge in law; that he acted upon the advice of his advocate and filed a civil suit as an indigent person for reinstatement alternately for damages of Rs. 3,00,000/- for the wrongful dismissal and that hence he is entitled to move the Labour Court once again seeking the reliefs of reinstatement with continuity of service and backwages together with annual increments. The contention of the employee that he being a layman, he acted upon the advice of the advocate at Visakhapatnam in seeking the reliefs in Civil Court and, therefore, he is entitled to take recourse to the Labour Court once again cannot be accepted because ignorance of law is no excuse. On the other hand, the conduct of the employee in taking recourse to the Civil suit seeking the reliefs of reinstatement and damages clearly shows that being conscious of the fact that he does not come within the definition of “workman” within the meaning of Section 2(s) of the Act, he sought the redressal of his grievance in the Civil Court. In the plaint filed in the civil suit he did not mention anywhere that he is a workman within the meaning of the Industrial Disputes Act. So having approached the Civil Court and having taken chance of obtaining the relief of reinstatement, it is not open to the employee to once again invoke the jurisdiction of the Labour Court by means of an industrial dispute claiming to be a workman as defined under Section 2(s) of the Act and seeking the same relief of reinstatement with backwages.
10. It is useful to refer at this stage to the decision of Rajagopala Ayyangar, J. in Samudra Vijayam Chettiar v. Srinivasa Alwar 1956 (1) MLJ 276. In the case a mortgagor has put the mortgagee in possession of a property under usufructuary mortgage, but the mortgagee introduced a tenant on the properly. While observing that the liability of the mortgagee is to deliver his possession of the property but not merely such possession as is involved in a mere direction to the tenant to attorn to the mortgagor. His Lordship, however, held that when once the mortgagor has taken proceedings against the tenant put in by the mortgagee before the Rent Controller under the Madras Buildings (Lease and Rent Control) Act on the basis of recognising the tenancy, he has elected his remedy and will be estopped from holding the mortgagee liable for delivery of possession or for mesne profits. His Lordship further observed that the fact that the tenant in such case has refused to attorn would not make any difference as it is the conduct of the mortgagor that matters and the attitude of the tenant is wholly irrelevant. Applying the above decision to the facts of this case, the employee having elected his remedy by approaching the Civil Court under Common Law for reinstatement and damages or compensation and having obtained a decree for damages, he is estopped from moving Labour Court again under the Industrial Disputes Act claiming that he is a workman under the Industrial Disputes Act and that he is entitled for reinstatement with back wages. His contention that he acted under the advice of an Advocate to file a civil suit regarding the wrongful dismissal and he is a layman without any knowledge in law, he filed a pauper suit for reinstatement or alternatively for damages of Rs. 3,00,000/- for the wrongful dismissal, even if true, does not help the employee. He cannot approbate and reprobate.
11. The employee relying upon a Division Bench decision of Madras High Court in The Management of Chandra Textiles Pvt. Ltd. Coimbatore v. N. Palaniswami & Ors. (1987-I LLJ-458 argued that the principle of “approbation and reprobation” will not apply to the fact of this case and will not disentitle him to the relief by way of an industrial dispute. In the case before the Madras High Court, the Labour Court awarded monetary relief in lieu of reinstatement. The Management tendered the money awarded the Labour Court by cheque and the worker accepted the same under protest and without prejudice to his rights to file writ petition. Later on, the worker filed a writ petition and obtained an order of reinstatement in service with consequential monetary benefits. The Division Bench of madras High Court held that the doctrines of “accord and satisfaction” and “approbation and reprobation” will not apply to the facts of that case and that the conduct of the worker did not disentitle him to relief either by way of writ petition of by any other principle of law. In that case after receiving the cheque covering the amount, the worker has addressed a letter that he was not accepting the award in so far as it refused granting the relief of reinstatement and that he would be filing the writ petition challenging the award. Their Lordships, therefore, were unable to dissociate that letter from the acceptance of the cheque and hold that the acceptance of the cheque is an independent act and it could be construed as an approbation of the award. But in this case, the employee himself approached the Court seeking the declaration that the dismissal from service is illegal, for mandatory injunction directing the Company to reinstate him with all service benefits and in the alternative to pass a decree of damages with subsequent interest and costs. The Civil Court while declaring that the termination of service is illegal, has awarded damages. As laid down by the Supreme Court in Premier Automobiles v. K. S. Wadke (1975-II-LLJ-445), the jurisdiction of Civil Court is not entirely barred and it is open to suitor to choose has forum and seek the remedy therein.
12. From the above discussion, I hold that where two alternative forums are available and when the employee has chosen one forum to seek the redressal of his grievance, having obtained a part of relief claimed by him before that forum, it is not open to him turn round and say that particular forum has no jurisdiction and to agitate his rights once again before an alternate forum. It is not as if the Management challenged the jurisdiction of the Civil Court to entertain the suit on the ground that the employee is a workman and on account of that objection, the employee chose a different forum viz : the Labour Court to seek his remedy. On the other hand, the employee himself invoked the jurisdiction of the Civil Court for a declaration that the termination of his service is illegal and invalid, for reinstatement or alternately for recovery of damages. The Company, which is the defendant in the suit, submitted to the jurisdiction of the Civil Court and both the parties have let in oral & documentary evidence and ultimately obtained decision of the Civil Court. Merely because the Civil Court did not grant the entire relief sought by the employee, it is not open to him to ignore the decree of the Civil Court and seek the relief of reinstatement before the Labour Court. In other words, it is not open to him to blow hot and cold.
13. It is not as if the jurisdiction of the Civil Court is barred either impliedly or expressly by the provisions of the Industrial Disputes Act to adjudicate upon the dispute between the parties relating to wrongful termination of service and other consequential reliefs. If so the findings arrived at by the Civil Court operate as res judicata and it is not open to the Labour Court to re-examine the evidence and to come to a different conclusion. Applying the principles of res judicata and public policy, I hold that the decision arrived at by a competent Civil Court is binding on all parties and that the finding of fact arrived at by such a competent Civil Court can be set at naught only by a superior Court exercising appellate or revisional jurisdiction, but not collaterally by Labour Court in the industrial dispute raised at the instance of the employee. Consequently I hold that the Labour Court does not have jurisdiction to examine the evidence let in before it afresh and to come to the conclusion that the employee comes within the definition of “workman” as defined under the Industrial Disputes Act and to grant the relief of reinstatement into service. In that view of the matter, it is not necessary scan through the oral and documentary evidence adduced in this case in order to determine whether the employee comes with definition of “workman” as defined under section 2(s) of the Act.
14. The learned Subordinate Judge on consideration of the oral and documentary evidence has come to the conclusion that the termination of service under Ex. A-3 cannot said to be ab initio void and that it amounts to wrongful dismissal of the employee. The Lower court, however, held that Section 42 and 21(b) of the Specific Relief Act do not permit the Civil Court to grant declaration that he continues to be in service of the Company. That is the reason why the learned Subordinate Judge has awarded only damages without granting the relief of reinstatement.
15. Challenging that findings of the learned Subordinate Judge that the employees not entitled for reinstatement, the employee has not preferred any appeal. So much so, the finding has become final and that question cannot be re-agitated. The learned counsel for the Company argued that even assuming the employee comes within the definition a “workman” and even assuming that the term nation of services is wrongful, the employee is not entitled for reinstatement and he is entitled only to adequate compensation as laid down by the Supreme Court in O. P. Bhandari v. India tourism Development Corpn. Ltd. . In that case while holding that the termination of services of the employee simply by giving 90 days’ notice or by payment of salary for the notice period in lieu of such notice, is violative of Arts. 14 and 16 of the Constitution, the Supreme Court held the compensation in lieu of reinstatement, and not reinstatement, was warranted. Their Lordship of the Supreme Court further held that compensation equivalent to 3.33 years salary including allowances admissible on basis of the last pay and allowances drawn by the employee would be a reasonable amount to award in her of reinstatement. The reasoning given by The Lordships is that the corpus if invested at the prevailing rate of interest will yield 50% of the annual salary and allowances and that he would be getting that amount without working. Following the above decision, through the employee has not preferred any appeal against the judgment of the learned Subordinate judge. I hold that instead of limiting the damages to the salary for a period of three years, the employee (the respondent in A.S. No. 2611/86) shall be entitled to damages or compensation equivalent to 3.33 years salary including allowances admissible on the basis of the last pay and allowances drawn by him if lieu of reinstatement.
16. Subject to the above direction enhancing the compensation amount, A.S. No. 2711/86 an W.P. No. 10648/88 are dismissed, W.P. No. 10067/88 is allowed setting aside the award of the Labour Court in I.D. No. 11/88. There shall be no order as to costs in the appeal as well as the two writ petitions