{"id":158289,"date":"2000-07-07T00:00:00","date_gmt":"2000-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/khem-chand-vs-s-k-sarvaria-another-on-7-july-2000"},"modified":"2017-11-07T09:53:25","modified_gmt":"2017-11-07T04:23:25","slug":"khem-chand-vs-s-k-sarvaria-another-on-7-july-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/khem-chand-vs-s-k-sarvaria-another-on-7-july-2000","title":{"rendered":"Khem Chand vs S.K. Sarvaria & Another on 7 July, 2000"},"content":{"rendered":"
Delhi High Court<\/div>\n
Khem Chand vs S.K. Sarvaria & Another on 7 July, 2000<\/div>\n
Equivalent citations: 2000 (55) DRJ 60<\/div>\n
Author: A Sikri<\/div>\n
Bench: A Sikri<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
A.K. Sikri, J.<\/p>\n
1.     This  petition raises short but interesting point of res  judicata  or right to raise industrial dispute by the petitioner-workman after his  writ petition challenging the same action was dismissed by this Court. The facts which give rise to the aforesaid question may be narrated first.\n<\/p>\n
2.   Petitioner  was appointed as Conductor with respondent No. 2  –  Delhi Transport  Corporation (hereinafter referred to as DTC, for short) on  15th June, 1984. On 13th November, 1985 he was served with charge-sheet for non-issuance  of  tickets to passengers after collecting due  fare  from  them. Three  charges were levelled against the petitioner. Enquiry was  held  and Enquiry  Officer  submitted  his report giving the findings  that  all  the charges levelled against the petitioner stood proved. Show cause notice was served upon the petitioner. At this stage, petitioner filed the writ  peti-\n<\/p>\n
tion  being Civil Writ Petition No. 1853 of 1988 which was dismissed  (this fact was not disclosed in the present writ petition). Thereafter petitioner was  removed  from  service w.e.f. 7th September,  1988.  Petitioner  filed another writ petition being Civil Writ Petition No. 2391 of 1988  challeng-ing the removal from service. This writ petition was also dismissed by  the Division  Bench  of this Court by passing order dated 24th  October,  1988. This is a one word order stating “Dismissed”. After suffering dismissal  in the  aforesaid manner petitioner raised industrial dispute  by  pproaching appropriate Government. This resulted in referring the matter for adjudication  by Delhi Administration vide its terms of reference dated 9th  March, 1992 reading as under :-\n<\/p>\n
      “Whether  the  removal from service of Shri Khem Chand  is  legal      and\/or  unjustified and if so, to what relief is he entitled  and      what directions are necessary in this respect.”\n<\/p>\n
3.   On  receipt of the reference, Labour Court issued notice to  both  the parties.  Petitioner filed his statement of claim to which written  submission was filed by the DTC. Rejoinder was filed by the workman and after the pleadings were over the following issues were framed by the Labour Court on 12th August, 1993:-\n<\/p>\n
     1.  Whether the enquiry conducted by the management was fair  and      proper? \n \n\n     2.  To what relief, if any, is the workman entitled in  terms  of \n     reference? \n \n\n<\/pre>\n
4.   After  framing of issues nobody appeared on behalf of DTC and  it  was proceeded  ex-parte.  Petitioner filed affidavit in evidence  and  argument were  heard and thereafter impugned award dated 2nd January, 1996  was  im-posed. While deciding the issue no.1 the Labour Court held that when  Civil Writ  Petition  No.  2391 of 1988 challenging the  enquiry  proceedings  on identical grounds was dismissed by High Court a Contrary findings cannot be given by it and therefore this issue was barred by principle of res judicata.  This  issue  was therefore decided in favour of DTC  and  against  the petitioner  and  as the enquiry was treated to be fair and  proper.  Labour Court  held  that petitioner was not entitled to any relief.  The  relevant observation  of the Labour Court while deciding issue No. 1 may  be  reproduced at this stage:-\n<\/p>\n
     The management in the Para No.13 of the written statement has specifically  stated  that the workman filed a writ in the Hon’ble High  Court  of Delhi  which  was dismissed. All the contents raised in  the  statement  of claim  were also raised before the Hon’ble High Court of Delhi and as  such the  workman  is debarred from seeking redressal of his  grievances  and\/or reinstatement  following  the doctrine of principles of res  judicata.  The workman has filed the copy of the writ petition bearing Civil Writ Petition No.  2391\/1988  challenging the enquiry proceedings and  his  dismissal  on
\nidentical facts with the prayer of issuance of order or direction to  quash the order of removal from service. The management alongwith documents  have filed the copy of the decision dated 24.10.88 of Division Bench of  Hon’ble High  Court  of Delhi in CW 2391\/88 & CM 4923\/88 by which the  above  writs petition  of the workman was dismissed. During the course of arguments  the factum of dismissal of writ petition of the workman with identical, plea by Hon’ble High Court is not disputed. When the writ petition challenging  the enquiry proceedings on identical ground is dismissed by Hon’ble High Court,
\na  contrary  findings can not be given by this tribunal while  passing  the present  award.  The issues is directly and substantially  involved  before Hon’ble  High Court in the said writ petition and in the present  reference being same, the statement of claim of the workman, in respect of the validity  of  the enquiry proceedings which led to his removal from  service  is certainly  barred  by principles of res judicata. The issue is  decided  in favour of the management and against the workman.\n<\/p>\n
5.   This  writ petition is filed challenging the aforesaid award and  contending that the Labour Court erred in holding that issue No. 1 was  barred by res judicata. Mr. D.N. Vohra, learned counsel for the petitioner  argued that  since  the writ petition was dismissed in limine  without  passing  a speaking order principles of res judicata did not apply. He further submitted  that dismissal of the writ petition was no bar on raising the  dispute by  invoking  the  machinery provided under  the  Industrial  Disputes  Act (hereinafter  referred  to as the Act, for short). He submitted  that  writ
\npetition  was  infact dismissed as alternate remedy was  available  to  the petitioner to raise industrial dispute and relied upon the judgment in  the case of Jitendra Nath Biswas Vs. M\/s. Empire of India & Cyclone Tea Company and  another reported in 1989 (2) LLJ 572; Daryao and others Vs.  State  of U.P.  and others  : Pujari Bai  Vs. Madan Gopal ; The Premier Automobiles Ltd.  Vs. Kamlakar Shamtaram Wadke and others .\n<\/p>\n
6.   He  also  submitted that u\/s. 11-A of the Act, Labour  Court  had  the powers  of  appellate Court as per the decision contained in  the  case  of Delhi Transport Corporation Vs. Ram Kumar reported in 1982 (44) FLR 356 and relied upon the following observation of the aforesaid judgment :-       “By virtue of powers under Section 11-A of the Industrial  Tribu nal  has  now  full power to re-appreciate the  evidence  and  to satisfy whether the evidence justifies the finding of misconduct.  The  Tribunal  is now even competent to give  and  impose  lesser  punishment  even if it agrees with the finding of the  management
\n     as  to  the  guilt of the employee. The scope  of  enquiry  under   Section  10 is now much wider than the scope of enquiry  for  ac-\n<\/p>\n
     cording  or refusing approval under Section 33(2)(b).  Section  –\n<\/p>\n
     11A  now permits a Tribunal even in case where enquiry  has  been  held  by  an employer and a finding of misconduct arrived  at  to  differ  from  that  finding is proper course, and  hold  that  no  misconduct  is  proved.  The Tribunal may hold  that  the  proved misconduct  does  not merit punishment by ways  of  discharge  or ismissal  and it can even impose lesser punishment instead.  The  power  to even interfere with the punishment is conferred on  the  Tribunal by Section 11A.”\n<\/p>\n
7.   On  the  other  hand Mr. J.N. Aggarwal, learned counsel  for  the  DTC submitted  that  raising of the dispute by the petitioner  was  misuse  and abuse  of  the process of law inasmuch as petitioner was  not  entitled  to agitate  the same cause of action in another forum i.e. before  the  Labour Court  after  his writ petition challenging the same order of  removal  was dismissed  by this Court vide its order dated 6th September, 1988. He  fur-ther  submitted that even otherwise writ petition deserves to be  dismissed on  the ground that alleged dispute was belated having been raised after  a
\nlapse of more than three years.\n<\/p>\n
8.   I may say at the outset that DTC, respondent herein, being a statutory authority is amenable to writ jurisdiction of this Court. After the  termination  of  the  petitioner’s services he had option to  either  file  writ petition  challenging  the  said order and he being a  workman  within  the meaning  of Section 2(s) of the Industrial Disputes Act, 1947,  could  also
\nraise industrial dispute challenging his termination. He had more than  one fora  to redress his grievance and he could choose from any of these  fora. However,  once having elected to choose remedy under one forum,  again  the same  cause  of action cannot be challenged before another forum.  This  is based on doctrine of election. ‘Doctrine of Election’ is based on the maxim “that  a person cannot approbate or reprobate at the same time”. This  same principle is stated in White and Tudor’s Leading Cases in Equity Vol. 1 and Eds. at page 444 as follows:-\n<\/p>\n
      “Election  is  the obligation imposed upon a party by  Courts  of
\n     equity  to choose between two inconsistent or alternative  rights
\n     or  claims in cases where there is clear intention of the  person
\n     from whom he derives one that he should not enjoy both.”\n<\/p><\/blockquote>\n
9.   This  doctrine has been applied in India also, based on  sound  public
\npolicy (refer Beepathuma Vs. Shankaranarayana ,
\nR.N. Gosain Vs. Yashpal Dhir , Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat  <\/p>\n
10.  Therefore once the petitioner had filed the writ petition being  Civil Writ  Petition  No. 2391 of 1988 which was dismissed by  order  dated  24th October,  1988,  normally  petitioner could not  raise  industrial  dispute challenging  the  order  of dismissal passed against him.  However  in  the instant  case  it  is seen that Civil Writ Petition No. 2391  of  1988  was dismissed by a non-speaking order with one word “dismissed” that too  with-out  even notice to the respondents. Therefore, even when it was  dismissed in  limine, if there were reasons given for dismissal of the writ  petition in  the order dated 24th October, 1988 the petitioner would not  have  been entitled  to invoke the remedy provided under the Industrial  Disputs  Act thereafter and such proceedings would have been barred on the principle  of constructive  res judicata also. However, this principle would not  be  applicable  when the dismissal of writ petition is by non-speaking order  and therefore  one does not know as to whether writ petition was  dismissed  on merits or on technical grounds. It is the contention of the petitioner that the  writ  petition was infact dismissed as the  petitioner  had  alternate efficacious  remedy available to raise industrial dispute through  the  machinery provided under the Industrial Disputes Act. However, as no  reasons were  stated  in the order dated 24th October, 1988,  as  already  observed above,  it is not possible to ascertain as to what were the  reasons  which prompted Division Bench of this Court to dismiss the writ petition.\n<\/p>\n
11.  The  position  in  law materially changes when the  writ  petition  is dismissed in limine by a non-speaking, one word order viz. “Dismissed”.  It as  been  held that principles of res judicata would not apply in  such  a situation. In Daryao case (supra) the proposition of law was stated by  the Apex Court in the following words:-\n<\/p>\n
      “We  must now proceed to state our conclusion on the  preliminary  objection  raised  by  the respondents. We hold that  if  a  writ      petition  filed  by a party under Art. 226 is considered  on  the   merits  as a contested matter and is dismissed the decision  thus  pronounced would continue to bind the parties unless it is other wise modified or reversed by appeal or other appropriate proceedngs permissible under the Constitution. It would not be open  to  a  party  to ignore the said judgment and move this  Court  under Art.  32 by an original petition made on the same facts  and  for  obtaining  the same or similar orders or writs. If  the  petition  filed  in the high Court under Art. 226 is dismissed not  on  the
\n     merits  but because of the laches of the party applying  for  the  writ  or  because it is held that the party  had  an  alternative  remedy  available to it, then the dismissal of the writ  petition  would not constitute a bar to a subsequent petition under Art. 32
\n     except  in  cases where and if the facts thus found by  the  High Court  may themselves be relevant even under Art. 32. If  a  writ  petition  is  dismissed in limine and an order is  pronounced  in  that behalf, whether or not the dismissal would constitute a  bar would depend upon the nature of the order. If the order is on the merits  it would be a bar; if the order shows that the  dismissal
\n     was  for the reason that the petitioner was guilty of  laches  or that he had an alternative remedy it would not be a bar except in  cases  which we have already indicated. If the petition  is  dismissed  in  limine  without passing a speaking  order  than  such  dismissal cannot be treated as creating a bar of res judicata. It is  true  that,  prima facie, dismissal in  limine  even  without  passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the  petition at all: but in the absence of a speaking order it would  not  be  easy to decide what factors weighed in the mind of the  court   and  that makes it difficult and unsafe to hold that such a  sum mary, dismissal is a dismissal on merits and as such  constitutes  a bar of res judicata against a similar petition filed under Art.  32.”\n<\/p><\/blockquote>\n
12.  To the same effect is the judgment of the Supreme Court in the case of ujari Bai (supra) the following pertinent observations were made:-       “This  takes us to the question of res judicata. The question  is
\n     whether  the suit of the appellant was barred by res judicata  in view of the summary dismissal of her writ petition earlier. It is  not  disputed  that  the writ petition  filed  by  the  appellant  against  the  order of the Assistant  Consolidation  Officer  was  dismissed  in limine. This order dated April 14, 1969 was  passed  by the Division Bench of Punjab and Haryana High Court. It was  a  one  word order. The question of res judicata  apparently  arises  when a controversy or an issue between the parties has been heard  and decided.<\/p><\/blockquote>\n
     But  the  technical rule of res judicata, although  a  wholesome  rule sed  upon public policy, cannot be stretched too far to bar the trial  of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the  principle  of res judicata to such an extent so as to found it on  mere  guesswork. To illustrate our view point, we may take an example. Suppose a  writ petition  is  filed in a High Court for grant of a writ  of  certiorari  to challenge  some order or decision on several grounds. If the writ  petition is dismissed after contest by a speaking order obviously it will operate as res  judicata  in  any other proceeding, such as, of suit,  Article  32  or
\nArticle 136 directed from the same order or decision. If the writ  petition is dismissed by a speaking order either at the threshold or after  contest, say,  only  on the ground of laches or the availability of  an  alternative remedy, then another remedy open in law either by way of suit or any  other
\nproceeding obviously will not be barred on the principles of res  judicata. It  thus becomes clear that when a writ petition after contest is  disposed of  on  merits by a speaking order, the question decided in  that  petition would  operate as res judicata, but not a dismissal in limine or  dismissal on  the  ground of laches or availability of alternative remedy.  The  High Court  and the courts below, therefore, were not right in throwing out  the suit of the appellant on the ground of res judicata.\n<\/p>\n
13.  The  position of law which emerges from the aforesaid judgment can  be summarised as under :-\n<\/p>\n
     i.  If a workman files a writ petition on a particular  cause  of      action  and the said writ petition is entertained and decided  on      merits and disposed of\/dismissed even in limine but by passing  a  speaking order, on the same cause of action the concerned employee is precluded from raising industrial dispute. This would be so on  the “doctrine of election” as well as on the  “principles  of
\n     res judicata”.\n<\/p><\/blockquote>\n
     ii.  In case the writ petition is dismissed in limine by  a  nonspeaking  order it would be unsafe to presume that writ  petition was dismissed on merits and therefore in such a case it could not operate  as  res judicata and therefore would not be a  bar  from raising industrial dispute.\n<\/p><\/blockquote>\n
14.  The  present case falls in the second category enumerated  above.  The writ   petition  filed  by  the  petitioner  was  dismissed  by  one   word “dismissed”.  Therefore,  it cannot be said that petition  was  decided  on merits. In these circumstances, the Labour court was wrong in holding  that the  writ petition was barred by res judicata. Accordingly, the writ  petition succeeds and is allowed. Rule is made absolute. Order dated 2nd  January,  1996  passed by the Labour Court is hereby set aside. The  matter  is remanded back to the Labour Court to decide the same on merits after giving opportunities  to  both the parties. Parties may appear before  the  Labour Court  on 1.8.2000. Since the dispute was referred for adjudication in  the year 1992, Labour Court should endeavour to decide the same expeditiously.\n<\/p>\n
15.  There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Khem Chand vs S.K. Sarvaria & Another on 7 July, 2000 Equivalent citations: 2000 (55) DRJ 60 Author: A Sikri Bench: A Sikri ORDER A.K. Sikri, J. 1. This petition raises short but interesting point of res judicata or right to raise industrial dispute by the petitioner-workman after his writ petition challenging […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-158289","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nKhem Chand vs S.K. 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