{"id":28305,"date":"2004-09-27T00:00:00","date_gmt":"2004-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/executive-engineer-zp-engg-divn-vs-digambara-rao-etc-etc-on-27-september-2004"},"modified":"2018-02-05T16:23:06","modified_gmt":"2018-02-05T10:53:06","slug":"executive-engineer-zp-engg-divn-vs-digambara-rao-etc-etc-on-27-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/executive-engineer-zp-engg-divn-vs-digambara-rao-etc-etc-on-27-september-2004","title":{"rendered":"Executive Engineer Zp Engg. Divn. … vs Digambara Rao Etc. Etc on 27 September, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Executive Engineer Zp Engg. Divn. … vs Digambara Rao Etc. Etc on 27 September, 2004<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: N. Santosh Hegde, S.B. Sinha<\/div>\n
           CASE NO.:\nAppeal (civil)  1164-66 of 2002\n\nPETITIONER:\nExecutive Engineer ZP Engg. Divn. & Anr.\n\nRESPONDENT:\nDigambara Rao etc. etc.\n\nDATE OF JUDGMENT: 27\/09\/2004\n\nBENCH:\nN. Santosh Hegde & S.B. Sinha\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA, J :\n<\/p>\n
\tThese appeals arise out of the judgments and orders dated 9.11.2000
\nand 20.11.2000  passed by the High Court of Karnataka at Bangalore in Writ
\nAppeal Nos.2756-57 of 2000 and  2759 of 2000 respectively whereby and
\nwhereunder the appeals preferred by the Appellants herein against  the
\norders dated 14.2.2000 and 15.2.2000 passed by the learned Single Judge of
\nthe said court in  several  writ petitions were dismissed.
\nFACTS :\n<\/p>\n
\tThe Respondents were originally employed on daily wages in relation
\nto a Scheme  known as ‘Kriya Scheme’ aimed at providing drinking water
\nand construction of  roads for the benefit of the rural poor in the District of
\nGulbarga in the State of Karnataka.  The employment allegedly commenced
\nin the year 1993. The services of the Respondents were terminated in 1996.
\nThey filed writ petitions before the Karnataka High Court contending , inter
\nalia, that as they having worked for a number of years, became entitled for
\nregularization.  It was furthermore contended that they had still been in
\nservice.  The prayers made in the said writ petitions which are relevant for
\nour purpose are as under :\n<\/p>\n
“a)\tIssue a writ of mandamus order or direction directing
\nRespondents No.2 & 3 to regularization (sic for
\nregularize) the service of the  petitioner no.1 to the post
\nof Assistant Engineer in the pay scale of Rs.2050\/- with
\nallowance, the petitioners no. 2 and 3 as Junior Engineers
\nin the pay scale of Rs.1520\/- and allowance.\n<\/p>\n
b)\tIssue a writ in the nature of mandamus order or direction
\nnot to discontinue the service of the petitioners and to
\ndirect payment of arrears of salary from September 1996
\nonwards and also to pay difference or arrears of salary to
\nthe petitioners from the date of completion of 240 days to
\ngrant all service benefits as are applicable to regular
\nemployees like seniority, promotion, increments,
\nallowance etc.”\n<\/p>\n
The said writ petitions came up for consideration before a learned
\nSingle Judge of the Karnataka High Court.\n<\/p>\n
We may further notice that along with the said writ petitions, the
\nRespondents herein annexed two documents wherefrom it appeared that they
\nhad allegedly continued to work beyond 19.10.1996, the date of termination
\nof their services.  Upon an inquiry made in this behalf at the behest of the
\nHigh Court, it was contended by the Appellants by  filing an additional
\naffidavit that no payment for daily wages had been made to the Respondents
\nafter the order of their discharge and such certificates had been procured
\nfrom a Junior Engineer against whom a departmental inquiry had  been
\ninitiated.  It was further pointed out that author of one of the documents had
\nhimself disowned the said letter in terms of a communication annexed to the
\nsaid additional affidavit.\n<\/p>\n
In the said writ petitions, two questions fell for consideration :\n<\/p>\n
“1)\tWhether the petitioners continued in employment of the
\nRespondents beyond the 19th of October, 1996; and 2)
\nWhether they are on the basis of the service rendered as
\ndaily wager entitled to an order of regularization?”\n<\/p>\n
By reason of a judgment and order dated 1.12.1997, the learned Single
\nJudge held that having regard to the fact that their services had been
\ndiscontinued, the question of a direction being issued for continuance of
\ntheir services does not arise having regard to the fact that the life of the
\nScheme had come to an end.  As regard the claim for regularization even on
\nthe basis of the services rendered by the Respondents upto October 1996, it
\nwas held that they were not entitled thereto in law.\n<\/p>\n
The writ petitions were, thus, dismissed.  An appeal preferred
\nthereagainst was also  dismissed by the Division Bench of the said High
\nCourt by an order dated 19.3.1998.  Despite the same, the Respondents
\nherein filed applications before the Labour Court at Gulbarga which were
\nmarked as Reference. Nos. 495 of 1998 , 484 of 1998  and 498 of 1998.    In
\nthe said Reference Applications, the Respondents did not disclose that the
\nHigh Court had dismissed their earlier writ petitions and furthermore the
\nappeal preferred thereagainst had also been dismissed.  Written statements in
\nthe said proceedings were filed by the Appellants, wherein, inter alia, it was
\ncontended that the employment of the Respondents was for daily wages and
\nfor a specific scheme.  A further contention was raised therein that having
\nregard to the decision of the High Court in the earlier writ petitions,
\nRespondents were not entitled to any relief.\n<\/p>\n
By an order dated 1.10.1999, the Labour Court, however, passed two
\nawards setting aside the orders of termination, inter alia, on the ground that
\nthe Respondents having worked for more than 240 days, the provisions of
\nSection 25F of the Industrial Disputes Act were required to be complied
\nwith.  They were in terms of the said awards directed to be reinstated with
\n50% of the back-wages.  The legality and\/or validity of the said awards
\ncame to be questioned by the Appellants herein by filing two writ petitions
\nbefore the Karnataka High Court which were marked as Writ Petition
\nNos.3808 of 2000 and 3697-98 of 2000 which were dismissed by an order
\ndated 14.2.2000  and 15.2.2000.  The appeals thereagainst filed by the
\nAppellants herein were also dismissed by  orders dated 9.11.2000 and
\n20.11.2000.  Hence these appeals.\n<\/p>\n
SUBMISSIONS :\n<\/p>\n
Mr. Mallikarajun Reddy, learned counsel appearing on behalf of the
\nAppellants, would, inter alia, submit that the Reference Applications were
\nbarred under the principle of res judicata.  The learned counsel would
\ncontend that the principle of res judicata would apply to a proceeding under
\nthe Industrial Disputes Act and in that view of the matter, the High Court
\ncommitted a manifest error in not interfering with the awards passed by the
\nLabour Court.  Reliance in this behalf has been placed on Pondicherry Khadi
\n& Village Industries Board vs. P. Kulothangan and Another<\/a>  [(2004) 1 SCC
\n68].\n<\/p>\n
Mr. K. Maruthi Rao, learned  counsel appearing on behalf of the
\nRespondents, on the other hand, would submit that the principle of res
\njudicata has no application in the instant case inasmuch as in the writ
\npetitions the prayer  made by the Respondents herein was for regularization
\nof their services, whereas  before the Labour Court the legality or otherwise
\nof the orders of termination came to be questioned.  In any event, Mr.
\nMaruthi Rao would contend that having regard to the fact that the
\nRespondents herein are qualified Junior Engineers and  have already crossed
\nthe age of forty, this Court may not, in its discretion, interfere with the
\nimpugned judgments.\n<\/p>\n
ANALYSIS :\n<\/p>\n
The said writ petitions were filed by the Respondents on the following
\npremise : (1) The Respondents had been appointed in the year 1993; (2)
\nWhen the writ petitions were filed they were still in service; (3) They were
\nappointed as Daily Wages Graduate Engineers;  (4) They were not being
\npaid the regular scale of pay, although they had been doing the same work as
\nwas being done by the regular employees; (5) Having regard to the fact that
\nthey had rendered about four years of continuous service  and being under
\nthreat of termination of service, they were entitled to be regularized in their
\nservice as also other benefits attached thereto,  having completed 240 days
\nof continuous service in a year.\n<\/p>\n
We have noticed hereinbefore that the factual premise that the
\nRespondents had still been in service at the time of filing of the writ
\npetitions  had been found to be  incorrect,  as in fact their services had been
\nterminated on or about 19.10.1996.  It was further held that as they were
\nappointed against a Scheme, the question of their continuance in service
\nbeyond the life thereof does not arise.  The High Court was furthermore of
\nthe opinion that their services cannot be directed to be regularized.\n<\/p>\n
We have noticed hereinbefore that although the principal plea of the
\nRespondents in the said writ petition was for regularization of their services
\nbut they had also prayed for issuance of a writ of mandamus or for a
\ndirection not to discontinue their services as also payment of arrears of
\nsalary from September 1996 onwards,  difference or arrears of salary from
\nthe date of completion of 240 days and  to grant all service benefits as
\napplicable to regular employees like seniority, promotion, increments,
\nallowance etc.
\nThe said prayer in the said writ applications had a direct nexus with
\nthe orders of  termination of their services.  A finding of  fact  having been
\narrived at that their services had been terminated and they were not entitled
\nto  continue in service, in our opinion, the legality or otherwise of the said
\npurported orders of termination could not have been the subject-matter of
\nproceedings under the Industrial Disputes Act;  for the reason that if the
\nRespondents herein were not entitled to continue in their services by reason
\nof the judgment of the High Court, the  question of their reinstatement with
\nback-wages would not arise.\n<\/p>\n
The Respondents herein approached the High Court with full
\nknowledge that their services had been terminated. Their attempt to show
\nthat they were still in service had been disbelieved and it was found as of
\nfact that their services had been terminated on 19.10.1996.  The
\nRespondents, therefore, while filing the writ application were bound  to lay
\ntheir whole claim having regard to the provisions contained in Order II Rule
\n2 of the Code of Civil Procedure or the principles analogous thereto.  The
\nvery basis upon which the writ petitions were based was found to be
\nincorrect.  It was, thus,  obligatory on the part of the Respondents herein to
\nquestion their orders of termination  upon placing correct facts before the
\nHigh Court.  They did not choose  to do so.  They did not pray for and obtain
\nany  leave of the court to raise the contention about the legality or otherwise
\nof the orders of termination before an appropriate forum.  Furthermore, their
\nplea to the effect that they were entitled to continue in service was
\nspecifically rejected.  In that view of the matter, the proceedings initiated
\nbefore the Labour Court questioning the orders of termination passed against
\nthem by the  Appellants praying for their reinstatement with full back-
\nwages, in our opinion, was wholly misconceived.  Such a plea was barred
\nunder the principle of Res Judicata.  It is now well-settled that the general
\nprinciple of Res Judicata applies to an industrial adjudication.\n<\/p>\n
In P. Kulothangan  (supra), this Court held  :\n<\/p>\n
“The principle of res judicata operates on the
\ncourt.  It is the courts which are prohibited from trying
\nthe issue which was directly and substantially in issue
\nin the earlier proceedings between the same parties,
\nprovided the court trying the subsequent proceeding is
\nsatisfied that the earlier court was competent to dispose
\nof the earlier proceedings and that the matter had been
\nheard and finally decided by such court.  Here the
\nparties to the writ petition filed by the respondent in the
\nMadras High Court and the industrial dispute were the
\nsame.  The cause of action in both was the refusal of the
\nappellant to allow the respondent to rejoin service.  The
\nMadras High Court  was competent to decide the issue
\nwhich it did with a reasoned order on merits and after a
\ncontested hearing.  This was not a case where the
\nearlier proceedings had been disposed of on any
\ntechnical ground as was the case in Workmen v. Board
\nof Trustees of the Cochin Port Trust<\/a> [(1978) 3 SCC\n<\/p>\n
119)]  and Pujari Bai v. Madam Gopal<\/a> [(1989) 3 SCC
\n433].  The “lesser relief” of reinstatement which was
\nthe subject-matter of the industrial dispute had already
\nbeen claimed by the respondent in the writ petition.
\nThis was refused by the High Court.  The correctness of
\nthe decision in the writ proceedings has not been
\nchallenged by the respondent.  The decision was,
\ntherefore, final.  Having got an adverse order in the writ
\npetition, it was not open to the respondent to reagitate
\nthe issue before the Labour Court and the Labour Court
\nwas incompetent to entertain the dispute raised by the
\nrespondent and redecide the matter in the face of the
\nearlier decision of the High Court in the writ
\nproceedings.”\n<\/p>\n
It is no doubt true, as has been contended by Mr. Maruthi Rao,  that
\nthe burden of proof that the Respondents were employed against a particular
\nScheme was on the Appellants but such a burden stood discharged and in
\nany event the said question was no longer alive having regard to the decision
\nof the Karnataka High Court in the earlier writ petitions.\n<\/p>\n
The plea raised before us by the Respondents to the effect that their
\ntermination of employment fell within sub-clause (bb) of clause (oo) of the
\nIndustrial Disputes Act,  apart from having not been raised before the
\nLabour Court and the High Court, in our opinion, is not available to them
\nhaving regard to the decision of the High Court in the writ petitions filed by
\nthe Respondents.\n<\/p>\n
The decision of  a Division Bench of this Court in S.M. Nilajkar and
\nOthers vs. Telecom District Manager, Karnataka<\/a> [(2003) 4 SCC 27], upon
\nwhich reliance was placed by Mr. Maruthi Rao, therefore, cannot be said to
\nhave any application whatsoever in the instant case.\n<\/p>\n
It may not be out of place to mention that completion of  240 days of
\ncontinuous service in a year may not by itself be a ground for directing an
\norder of regularization.  It is also not the case of the Respondents that they
\nwere appointed in accordance with the extant rules.  No direction for
\nregularization of their services was, therefore, could be issued. [See A.
\nUmarani vs. Registrar, Cooperative Societies and Ors.<\/a> [2004 (6) SCALE 350
\n= (2004) 7 SCC 112]  and Pankaj Gupta & Ors. etc. vs. State of Jammu &
\nKashmir & Ors.  [2004 (7) SCALE 682]  Submission of Mr. Maruthi Rao to
\nthe effect that keeping in view the fact that the Respondents are diploma-
\nholders and they have crossed the date of 40 by now, this Court should not
\ninterfere with the impugned judgment is stated to be rejected.\n<\/p>\n
In  A. Umarani (supra), this Court rejected the similar contention upon
\nnoticing the following judgments  :\n<\/p>\n
“In a case of this nature this court should not even
\nexercise its jurisdiction under Article 142 of the
\nConstitution of India on misplaced sympathy.\n<\/p>\n
In Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh
\nand Others [(2004) 2 SCC 130], it is stated:\n<\/p>\n
“We have no doubt in our mind that sympathy or
\nsentiment by itself cannot be a ground for passing
\nan order in relation whereto the appellants
\nmiserably fail to establish a legal right.  It is
\nfurther trite that despite an extra-ordinary
\nconstitutional jurisdiction contained in Article 142
\nof the Constitution of India, this Court ordinarily
\nwould not pass an order, which would be in
\ncontravention of a statutory provision.\n<\/p>\n
As early as in 1911, Farewell L.J. in Latham
\nvs. Richard Johnson & Nephew Ltd. [1911-13 AER
\nreprint p.117] observed :\n<\/p>\n
“We must be careful not to allow our
\nsympathy with the infant plaintiff to affect our
\njudgment. Sentiment is a dangerous Will O’
\nthe Wisp to take as a guide in the search for
\nlegal principles.”\n<\/p>\n
\tYet again recently in Ramakrishna Kamat & Ors.\n<\/p>\n
Vs. State of Karnataka & Ors. [JT 2003 (2) SC 88], this
\nCourt  rejected a similar plea for regularization of
\nservices stating :\n<\/p>\n
“We repeatedly asked the learned counsel for
\nthe appellants on what basis or foundation in law
\nthe appellants made their claim for regularization
\nand under what rules their recruitment was made
\nso as to govern their service conditions.  They
\nwere not in a position to answer except saying that
\nthe appellants have been working for quite some
\ntime in various schools started pursuant to
\nresolutions passed by zilla parishads in view of the
\ngovernment orders and that their cases need to be
\nconsidered sympathetically.  It is clear from the
\norder of the learned single judge and looking to the
\nvery directions given a very sympathetic view was
\ntaken.  We do not find it either just or proper to
\nshow any further sympathy in the given facts and
\ncircumstances of the case.  While being
\nsympathetic to the persons who come before the
\ncourt the courts cannot at the same time be
\nunsympathetic to the large number of eligible
\npersons waiting for a long time in a long queue
\nseeking employment.”\n<\/p>\n
For the foregoing reasons,  we are of the opinion that the Labour
\nCourt and the High Court committed a manifest error in passing the
\nimpugned judgments and awards and as such they are liable to be set aside.\n<\/p>\n
These appeals are allowed and the impugned judgments and award are
\nset aside.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Executive Engineer Zp Engg. Divn. … vs Digambara Rao Etc. Etc on 27 September, 2004 Author: S.B. Sinha Bench: N. Santosh Hegde, S.B. Sinha CASE NO.: Appeal (civil) 1164-66 of 2002 PETITIONER: Executive Engineer ZP Engg. Divn. & Anr. RESPONDENT: Digambara Rao etc. etc. DATE OF JUDGMENT: 27\/09\/2004 BENCH: N. Santosh […]<\/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":[30],"tags":[],"class_list":["post-28305","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nExecutive Engineer Zp Engg. Divn. ... vs Digambara Rao Etc. 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