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2001 DIGILAW 1586 (RAJ)

R. S. E. B. v. Judge, Industrial Tribunal, Jaipur

2001-09-28

S.K.KESHOTE

body2001
JUDGMENT 1. - By this petition, under Article 227 of the Constitution of India, the petitioners are challenging the interim award of the Industrial Tribunal, Jaipur (for short 'the Tribunal') dated 31st August, 1999 in Case No. IT No. 67/1999. By this interim award, the Tribunal has directed the petitioners herein not to retire the respondent workman on 31st of August, 1999 or on 1st September, 1999 till the final decision of the reference is made. 2. This petition has come up for preliminary hearing on 28th October, 1999 on which date, notices were issued to the respondents to show cause as to why the same should not be admitted and allowed. 3. On stay application, on this date, the Court has issued notices to the respondents but interim relief was not granted. On 26th July, 2001, the Court has stayed the operation, implementation and execution of the award. 4. The facts of the case are that the respondent No. 2 raised an industrial dispute for workman Ladu Ram that his date of birth has been recorded incorrectly when his correct date of birth is recorded 1st May. 1948 is his service book, his date of birth is recorded as 1st of September, 1941. Conciliation proceedings failed and the Government has referred the dispute to the Tribunal for decision. The dispute referred is as under : (Vernacular matter omitted) 5. This industrial dispute is pending for final adjudication as both the parties are in the agreement that the reference has not been finally decided. During the pendency of this dispute, this interim award has been passed meaning thereby, by this interim award final relief has been given to the respondent workman. 6. The learned counsel for the petitioners contended that in a dispute regarding the date of birth of workman, no interim award is to be passed by the Industrial Tribunal or the Labour Court as the case may be. The next submission of the learned counsel for the petitioners is that though the dispute raised has not been finally decided but by this interim award the relief as prayed for has finally been given to the workman. It has next been contended that in the matter of dispute regarding the date of birth, no interim relief is to be granted by the Court otherwise it will result in granting final relief. It has next been contended that in the matter of dispute regarding the date of birth, no interim relief is to be granted by the Court otherwise it will result in granting final relief. This grant of interim relief to the concerned workman amounts to final relief pending final adjudication of the dispute. 7. Shri Shah, learned counsel for the respondent submitted that it is permissible to the Labour Court or the Industrial Tribunal to pass the interim award. The date of birth of the concerned workman has been unilaterally changed by the petitioners and in this case, the Tribunal was justified in passing the interim award. Relying on the decision of the Apex Court in the case of Secretary and Home Commissioner v. R. Kirubakaran, AIR 1993 SC 2647 : 1993(4) SCT 803 (SC) , the learned counsel for the respondent workman submitted that in such matters, the courts have all powers to grant interim relief. 8. I have given my thoughtful consideration to the rival contentions made by the learned counsel for the parties. 9. The interim award in sum and substance is not a final award given after adjudication of the industrial dispute referred to the Industrial Tribunal by the Government. It is in fact and substance an interim relief granted to the concerned workman by the Industrial Tribunal, Jaipur pending final adjudication of the industrial dispute in the reference. By this interim award, the tribunal has directed the petitioners to continue the workman in service as if his date of birth is 1st of May, 1948 and not 1st of April, 1941. The principles which are laid down by the Hon'ble Supreme Court in catena of decisions which are to be followed while granting interim relief Re the dispute regarding date of birth, have not been followed in the present matter by the Tribunal. These principles laid down by the Supreme Court in catena of decisions are to be followed by the Tribunal or the Labour Court as the case may be while passing the interim award in the reference of the industrial dispute made to the Industrial Tribunal in the matter of dispute of date of birth of the concerned workman, as the decision is binding on all the Tribunals and Labour Courts in the country. In the case of State of U.P. v. Vishveshwar, 1995 Supp. In the case of State of U.P. v. Vishveshwar, 1995 Supp. (3) SCC 590 , their lordships of the Supreme Court held that grant of final relief in the form of interim relief is not permissible to the courts. In this case, by this interim award in sum and substance, the Tribunal has granted final relief to the concerned workman, which ultimately it may or may not grant while deciding the matter finally. 10. In the case of Bank of Maharashtra v. Race Shipping and Trans. Company, 1995(2) R.R.R. 299 : (1995)3 SCC 257 : ( AIR 1995 SC 1368 ) , their lordships of the Supreme Court have deprecated this practice of the Court to grant in substance the principle relief in the matter by way of interim order. Such a practice which is adopted by the Courts has been deprecated by the Supreme Court in this Case. In the case in hand if we go by this interim award in the context of the industrial dispute which has been referred to the Tribunal. I am satisfied that by granting said relief the Tribunal has granted in substance the principal relief, which ultimately can only be granted on the final adjudication of the reference. 11. Fruitfully, reference may have to another decision of the Supreme Court in the case of Bharat Bhushan Sonaji Kshirsagar v. Abdul Mohd., 1995 Supp. (2) SCC 593. In this case, their Lordships of the Supreme Court held that interim order passed by the Court pending final decision of the writ petition having the effect of allowing the writ petition itself is not proper. In this case also, by the impugned interim award, the Tribunal has granted the final relief which maximum could have been granted by it at final stage of the decision in the reference. 12. Reference may have to another decision of the Apex Court in the case of Shiv Shanker v. Board of Directors, 1995 Supp. (2) SCC 726. Their Lordships of the Supreme Court while considering the object of grant of interim order, held that grant of relief asked for in the petition by way of interim order is not proper. They further held that on the dismissal of the writ petition, the interim order comes to an end. The interim order granted in the proceedings by the Court ultimately merged in the final order passed in the proceedings. They further held that on the dismissal of the writ petition, the interim order comes to an end. The interim order granted in the proceedings by the Court ultimately merged in the final order passed in the proceedings. In the case in hand. the impugned interim award will ultimately merge in the final award. In the final award, there may be possibility that the Tribunal may not grant any relief in favour of the workman. So though, in the final award the workman may not get a relief but by virtue of this interim award he will get the benefits of the same for which otherwise he may not be found entitled. In such matters no relief whatsoever has to be granted by the Industrial Tribunal or the Labour Court by way of interim award. Reference may have to yet another decision of the Apex Court in the case of P.R. Sinha v. Inder Krishna Raina, (1996)1 SCC 681 . Their lordships of the Supreme Court in this decision gave a word of caution to the High Court. It is held that the High Court should not pass interim orders the nature of which is to grant a relief which can be granted only at the final disposal of the petition. 13. There are cases of their Lordships of the Supreme Court on the point of grant of interim relief by the Court in the dispute Re date of birth of employees/officers. 14. In the case of Secretary and Home Commissioner ( AIR 1993 SC 2647 ) (supra), Hon'ble Supreme Court has held that a Tribunal/Court should be slow to grant interim relief of continuance of the employee in service pending adjudication of the dispute in the matter Re date of birth. Their Lordships in that case have held as under:- "An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever, Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect which cannot be lost sight of by the Court of the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve' of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve' of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior." 15. Reference may have to another decision of their Lordships of the Supreme Court in the case of Burn Standard Company Ltd. v. Deena Bandhu Majumdar, (1995)4 SCC 172 : (1995 Lab IC 1825). In this case, their Lordships have observed as under - "Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chance of promotion of their juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Court under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to date of birth accepted by their employers, placing reliance on the so-called newly-found material. Extraordinary nature of the jurisdiction vested in the High Court under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to date of birth accepted by their employers, placing reliance on the so-called newly-found material. The fact that an employee of Government or its instrumentality who has been in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court. not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his "Service and Leave Record" could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of their discretionary writ jurisdiction. entertain a writ application/petition failed by an employee of the Government or its instrumentality, towards the fag end of his service seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement." 16. From the judgment of the Apex Court which has been relied upon by the learned counsel for the petitioners himself it is clear that it is not a rule or law that in the matter of the dispute related to date of birth, stay has to be granted. From the judgment of the Apex Court which has been relied upon by the learned counsel for the petitioners himself it is clear that it is not a rule or law that in the matter of the dispute related to date of birth, stay has to be granted. In the matter of grant of stay/interim injunction or interim award by the Court or by the Tribunal/Labour Court pending final adjudication of the dispute Re date of birth, the principles which are to be followed in grant of temporary injunction under order 39 rules 1 and 2 Civil Procedure Code are to be followed. The Tribunal or the Labour Court or the Court as the case may be, while considering the application filed by the litigant concerned has to consider that he has a strong prima facie case in his favour. The Court or the Tribunal has to consider that if the interim relief/stay is not granted in his favour it will result in causing him an irreparable injury which cannot be compensated in terms of money and lastly, that the balance of convenience also favours grant of stay/interim relief or interim award. Unless the Court or Tribunal is satisfied on all the aforesaid three ingredients, no interim relief, stay or interim award can be ordered. Howsoever, strong a litigant may have a prima facie case but in case when the Court is satisfied that non-grant of injunction or stay or interim award will not result in causing injury to the litigant concerned, which can be compensated in terms of money certainly, it can legitimately decline to grant relief. Even where the Court/Tribunal finds in the case in favour of the litigant concerned on the ingredients of prima facie case and irreparable injury but it is satisfied that balance of convenience does not favour grant of interim relief it can legally decline to grant any interim relief in the matter. Even where the Court/Tribunal finds in the case in favour of the litigant concerned on the ingredients of prima facie case and irreparable injury but it is satisfied that balance of convenience does not favour grant of interim relief it can legally decline to grant any interim relief in the matter. Here in this case, as observed by their lordships in the case of Secretary and Home Commission ( AIR 1993 SC 2647 ) (supra), a matter of grant of interim relief in the case Re dispute of correction of date of birth, the Court or the Tribunal has not only concerned to irreparable injury which may be caused to the litigant but has to see that the other persons who are not before it or public at large may not suffer by this grant of relief. In the case of dispute Re date of birth, in case an interim relief/stay or interim award has been made, it may result in causing prejudice and monetary loss and other manifold losses to those undisclosed person who may be aspirant for promotion on the post which has to be vacated by the employee/officer concerned. Not only this, looking to the wholesale unemployment in the country, the unemployed persons will deprived of this benefit of employment where by grant of interim relief, stay or interim award, the workman is ordered to continue as such in the service. In the case where ultimately the litigant lost in the matter Re date of birth dispute, those undisclosed persons will suffer and for their sufferance, the Court cannot compensate them. Further in a case where the interim relief or stay or interim award is not made in such case and ultimately the litigant succeeds in the case, the Court/Triburial has all powers to compensate him for the loss suffered by him. Here in this case, as per his date of birth recorded in his service book the workman has to be retired from service and if ultimately the tribunal would find that the retirement was not proper then it has all power to grant monetary benefits to him for the period, he remained out of employment because of the act of the petitioners. It is not a case where for this loss, the respondent workman cannot be compensated by the Tribunal. It is not a case where for this loss, the respondent workman cannot be compensated by the Tribunal. The date of birth recorded originally or as modified later on which is correct, is a matter for decision by the Industrial Tribunal, Jaipur. The Tribunal after evidence of both the parties may decide the matter either way i.e. in favour of the workman or the management. In such matters. pending final adjudication of the dispute. it is not in the interest of justice also to protect the workman by passing this interim award. It is unfortunate that the judicial officers who are presiding over the Industrial Tribunals or the Labour Courts are of the view that because they are the presiding officers of the Industrial Tribunal or the Labour Court, relief has to be granted to the workman. It is a total misconception of law. They are not concerned with either of the parties but concern only to decide the matter in accordance with law. The ultimate decision goes in favour of the workman or the employer it is not concerned of the presiding officer of the Industrial Tribunal or the Labour Court. Invariably most of the decisions are being given in favour of the workman only due to that misconception of law which is going on in the minds of the presiding officers of the Industrial Tribunals/Labour Courts. The concerned workman if ultimately succeeds in the matter can be given all consequential benefits follows there from by the Industrial Tribunal, Jaipur. It is at the most a case only of premature retirement. In case, ultimately, the concerned workman succeeds in the reference, then he shall get all retirement benefits on the basis of his qualify services. It is not the case where he has lost every penny of his retiral benefits. If ultimately, he suceeds, the petitioners have to act in accordance with the final award and to give all consequential benefits as ordered by the Tribunal to the concerned workman. The dispute is regarding the correct date of birth, yet the Tribunal has passed this interim award, which cannot be allowed to stand. In this case the Tribunal has committed serious error and illegality in exercise of its jurisdiction. It is a case where if ultimately, the respondent workman falls in reference, he will get the service benefits, for which otherwise he would not have been entitled. In this case the Tribunal has committed serious error and illegality in exercise of its jurisdiction. It is a case where if ultimately, the respondent workman falls in reference, he will get the service benefits, for which otherwise he would not have been entitled. Not only this, the persons who are to be promoted due to retirement of the respondent workman will not get the same and in that case. they cannot be compensated for the loss suffered. But for the concerned workman on his success there cannot be any legal impediment in the way of the Tribunal to grant all consequential benefits to him. It is a case of dereliction of duty and flagrant abuse of fundamental principles of law and justice by the Industrial Tribunal. In case this Court does not interfere with this interim award of Industrial Tribunal grave injustice would not only be done to the petitioners but to the other undisclosed persons also. 17. As a result of the above discussions, the writ petition succeeds and the same is allowed. The impugned interim award dated 31-8-1999 is quashed and set aside. The respondent No. 2 is directed to pay cost of this petition to the petitioners which is quantified to Rs. 2200/-.Petition allowed. *******