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2008 DIGILAW 137 (KAR)

Managing Director v. Manjegowda S/o Sonnegowda

2008-02-25

SUBHASH B.ADI

body2008
ORDER Subhash B. Adi, J.— An Award dated 3.7.2003 in Ref. No. 166/2001 is called in question by the petitioner. 2. The issue referred to the Industrial Tribunal was, as to whether the termination of the respondent on 5.3.1990 is justified or not. 3. The case of the respondent is that, he was appointed as Helper on 26.5.1984 and he was terminated from service on 5.3.1990. The State Government referred the matter on 4.3.1995 i.e. nearly after five years of his termination. Before the Industrial Tribunal, the Executive Engineer was made a party. It appears that, the Executive Engineer did not contest the matter by filing the counter statement The Industrial Tribunal based on the evidence of the respondent and Ex.W1 held that, the respondent is entitled is reinstatement without back wages. 4. Thereafter, the Executive Engineer had tiled Writ Petition in W.P. No. 10936/2005 and this Court by order dated 10.1.2006 passed a peremptory order granting two weeks time to do the needful, Since, needful was not done, the said Writ Petition was dismissed for non-prosecution. Thereafter, the petitioner Company filed this Writ Petition seeking permission of this Court to prosecute the matter. 5. Learned Counsel appearing for the petitioner submitted that, the Appointing Authority in this case is the State and the State was not made a party before the Industrial Tribunal. The dispute itself is not maintainable. He also submitted that, the matter was not contested by the Executive Engineer and the award is passed only on the basis of the evidence of the respondent In support of his contention, he relied on the decision of Division bench of this Court reported in (2004) 104 FLR 529 In the matter of Assistant Executive Engineer v. J. Mahadbvaiah and submitted that, the employer is necessary party for adjudication of the dispute and in case of the Local Authority, Chief Executive Officer, in other case, the Head of Department. 6. Learned Counsel submitted that, the Head of Department at relevant point of time is, the Chief Secretary of the Government of Karnataka and he is not impleaded as party. He also submitted that, tiling of earlier Writ Petition by the Executive Engineer and dismissal of the same for non prosecution will not constitute the res-judicata for filing this Writ Petition. Learned Counsel submitted that, the Head of Department at relevant point of time is, the Chief Secretary of the Government of Karnataka and he is not impleaded as party. He also submitted that, tiling of earlier Writ Petition by the Executive Engineer and dismissal of the same for non prosecution will not constitute the res-judicata for filing this Writ Petition. He submitted that, there is no adjudication of any issue between the parties by this Court It is at the stage of compliance with the office objection, the matter was posted and the Writ Petition was dismissed for non-prosecution and that cannot be a ground to hold that, it operates res-judicata. 7. He also submitted that, before the Industrial Tribunal there is no material to show that, the respondent had proved his case of continuous working for 240 days in a year and in the absence of any material, the Industrial Tribunal only on the ground that the matter was not contested, has passed the award. 8. Learned Counsel appearing for the respondent submitted that, the Writ Petition itself is not maintainable, in view of the Writ Petition No. 10936/2005 filed by the Executive Engineer earlier against the same award. He submitted that once the award is confirmed by this Court, it is not now open to the petitioner Company to re-agitate the same by filing another Writ Petition, He referred to Section 11 Explanation 5 of the CPC, interalia stating that, the matter, which is concluded, can not be re-open, as it operates as res-judicata. 9. He submitted that, no contention as urged now was raised before the Industrial Tribunal and it is not now open to raise new contentions and question the award. He also submitted that, the Labour Commissioner granted permission to prosecute the Authority on the ground that, the Writ Petition has been dismissed by this Court He also submitted that, no appeal is filed against the earlier Writ Petition. 10. It is not in dispute that, the reference is made alter five years. Now it is well settled law that, the workman who claims that, he had worked for 240 days continuously in a year, is required to prove with a prima facie material. The burden is initially on him. It is also well settled law that, the delay is also a factor, which is required to be considered. 11. Now it is well settled law that, the workman who claims that, he had worked for 240 days continuously in a year, is required to prove with a prima facie material. The burden is initially on him. It is also well settled law that, the delay is also a factor, which is required to be considered. 11. Most important aspect of this mater is, an employer is a necessary party and without him, the ward cannot be passed. In this case, the parties have not disputed that, the Executive Engineer was not the Appointing Authority at the relevant time. In case of the Local Authorities, it is the Chief Executive Officer would be the Appointing Authority. In other case of appointment by the State, the Secretary of the respective department is the Appointing Authority. In all the cases, whether the State is not made a party, this Court has taken note of the same and has set aside the award by directing the Industrial Tribunal to permit the claimant to implead the State and thereafter pass the award. 12. In an issue, which is not adjudicated before the Court, in my view, the Provisions of Section 11 of the CPC cannot be invoked. Neither, the Writ Petition was heard nor the Writ Petition was disposed of on merit nor there was no adjudication. Non compliance with the office objection by itself will not constitute as a res-judicata. The Division Bench of this Court in the case referred to above has observed that: Para 5: We may take notice of a disturbing trend in regard to such claims. We find that, a large number of disputes are raised by persons claiming to be daily mage employees alleging wrongful termination. They allege that, a 'Junior Engineer' or 'Assistant Executive Engineer' of a particular project or division is the 'employer'. Such disputes are raised several years after the alleged termination, that is after periods ranging from 5 to 12 years after the alleged termination. (Note: in this case, however, there is no such delay in seeking reference). Neither the State nor the Local Authority against whom they ultimately enforce the award is not impleaded as a party, to most of these cases, the Junior Engineer or Assistant Executive Engineer impleaded as respondent does not appear, or even if he appears, does not contest the matter. Neither the State nor the Local Authority against whom they ultimately enforce the award is not impleaded as a party, to most of these cases, the Junior Engineer or Assistant Executive Engineer impleaded as respondent does not appear, or even if he appears, does not contest the matter. Neither documents are produced nor oral evidence is let in by such Junior Engineer or Assistant Executive Engineer. The alleged workmen invariable produces some letter or certificate stating that, he had worked continuously for more than 240 days. As a consequence, the Industrial Tribunal allows such claims and orders reinstatement with back wages. Once the awards are made, even though the State Government or the Zilla Panchayat was not a party to the reference, the orders for reinstatement are enforced against them. Normally, it is at this stage, the matter comes to the notice of the Authority concerned. By then it is too late to contest. As a consequence, the State Government and the Zilla Panchayat are forced to reinstate such persons though there are no sanctioned posts, that too with continuity of service and also pay considerable back wages. 13. It held that, the Assistant Executive Engineer, Junior Engineer and the persons who are not Appointing Authority, are made party before the Industrial Tribunal and the awards are passed and these awards are noticed by the Appointing Authority only when they are sought to be executed against them. It is also observed that, the matters are not contested by the Assistant Executive Engineer, Junior Engineer, whomsoever was made parties at relevant point of time, as either the officers will not be there or they will not be having knowledge of the proceedings. 14. In view of the decision of the Division Bench of this Court in identical circumstances and also considering the fact that the earlier Writ Petition was dismissed for non-prosecution, I find that, the State which is necessary party having not been impleaded. The, matter requires reconsideration. 15. Accordingly, this Writ Petition is allowed and the award dated 3.7.2003 in Ref. No. 166/2001 is quashed. The, matter requires reconsideration. 15. Accordingly, this Writ Petition is allowed and the award dated 3.7.2003 in Ref. No. 166/2001 is quashed. The matter is remitted to the Industrial Tribunal with liberty to the respondent to implead the State as a party and the Industrial Tribunal is directed to proceed with the matter after impleading State, as early as possible within three months from the date of receipt of the copy of this order and it is observed that, the Industrial Tribunal should not be influenced or prejudiced by the observations, if any made, during the course of this order and deal with the matter independently.