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2022 DIGILAW 72 (UTT)

Gursharan Singh Dua v. High Court of Uttarakhand

2022-04-04

SHARAD KUMAR SHARMA

body2022
JUDGMENT : Sharad Kumar Sharma, J. The petitioner claiming himself to be a registered member of the Bar Association of the district judgeship of district Dehradun, had preferred a writ petition as against the action, which had been taken by the Resolution of the Bar Association of district Dehradun dated 15th November 2017, by virtue of which, the petitioner’s membership with the said Bar Association, was expelled. Simultaneously, there was a direction also issued by the Bar Association of district judgeship of district Dehradun, to hand over the vacant possession of Chamber No. 21, situated behind the Court of Chief Judicial Magistrate, Dehradun, which was said to be occupied by the petitioner. 2. Questioning the aforesaid two actions, when the writ petition was preferred by the petitioner i.e. Writ Petition (M/S) No.1905 of 2018, Gursharan Singh Dua Vs. High Court of Uttarakhand and another, the petitioner has sought for the following reliefs:- “Prayer It is, therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to:- “i. issue a writ, order or direction in the nature of certiorari, calling for the records and quashing the resolution dt. 15.11.2017 (publish in news paper on 16.11.2017) (Annexure No. 6 to this writ petition), passed by Bar Association, Dehradun-respondent No. 3. ii. issue a writ, order or direction in the nature of Mandamus, commanding the Bar Association, Dehradun-respondent no. 2 to hand over the chamber no. 21, situated behind the Court of Chief Judicial Magistrate, Dehradun, forthwith to the petitioner. iii. pass any other and further orders, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. iv. award the cost of writ petition to the petitioner. 3. The said writ petition was considered by the co-ordinate Bench of this Court and the co-ordinate Bench, vide its judgement dated 25th September 2019, had disposed of the writ petition with the following directions:- “5. In view thereof, writ petition is disposed with direction that the District Judge, Dehradun shall hear all the concerned parties and shall take a decision as to taking away or allotting the chamber to the petitioner. Let the decision be taken by the District Judge, Dehradun as expeditiously as possible but definitely within a period of two weeks from the date of production of a certified copy of this order.” 4. Let the decision be taken by the District Judge, Dehradun as expeditiously as possible but definitely within a period of two weeks from the date of production of a certified copy of this order.” 4. In fact, if the direction which was given by the co-ordinate Bench of this Court, is taken into consideration, being conscious of the cause, which was then agitated by the petitioner in the said writ petition where the co-ordinate Bench of this Court in para 1 of the judgment dated 25.09.2019, refers to the resolution of Bar Association expelling the petitioner’s membership, therefore, had confined the direction and thereby directing the District Judge to hear all the concerned parties and take a decision as to "taking away or allotment of chamber to the petitioner, let the decision be taken by the District Judge”, as directed by the coordinate Bench of this Court on 25th September 2019. 5. On a simpler interpretation to the direction which was given by the co-ordinate Bench of this Court, in the judgement dated 25th September 2019, the only scope which was left open to be ventured by the District Judge, was pertaining to the aspect of taking away or allotment of the chamber to the petitioner. The co-ordinate Bench of this Court, being conscious of the subject, which was under consideration before it in the writ petition; pertaining to the decision of the resolution of the Bar Association for expulsion of the petitioner’s membership, the High Court has not issued any direction or ventured into that aspect in any manner whatsoever. Hence, this Court is of the view that once a relief is claimed by the petitioner before the writ Court or any other Court of law regarding expulsion of his membership, for that matter, out of the number of reliefs prayed for by the petitioner, if some of the reliefs are granted and for rest of the reliefs, the judgement rendered by the Court, is silent, it would amount to that for the rest of the relief, for which the judgement is silent, stands denied. 6. In order to fortify the aforesaid reasoning, a reference may be made to the judgement as to where the aforesaid principles have been laid down in viz:- (1) The Hon’ble Apex Court, in the matters reported in 2001 (1) SCC 73 , State Bank of India Vs. 6. In order to fortify the aforesaid reasoning, a reference may be made to the judgement as to where the aforesaid principles have been laid down in viz:- (1) The Hon’ble Apex Court, in the matters reported in 2001 (1) SCC 73 , State Bank of India Vs. Ram Chandra Dubey and others, has laid down the aforesaid principle in para 8 of the judgment, which enunciates that the workman is entitled to receive several benefits from the employer and it is denied the benefit which has been claimed and the part which has been denied, the denial if it is not reflected in the order, it would be deemed that it has been denied since reference to it in the relief and not referring the same while adjudicating the matter would infer its denial. Para 8 is extracted hereunder:- “8. The principles enunciated in the decisions referred by either side can be summed up as follows : Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered, just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages.” (2) The similar view, the Hon’ble Apex Court, in a judgment as reported in 2006 (2) SCC 285 , K.C. Skaria Vs. Govt. of State of Kerala and Another. In para 23 of the said judgment, the Hon’ble Apex Court had laid down that the dismissal of the entire suit as it was in the said case does not warrant that as if the other reliefs which were not part of the proceedings has been denied. In fact, dismissal of the said suit would be confined to the relief, which was subject matter before the Court for its adjudication and hence on the basis of the principles of para 23, it could be inferred that in a suit where the plaintiff consciously or party to the proceedings raises a claim and the same has not considered nor any reference is made in the order of an adjudication, it will tantamount to be a denial. Para 23 of the said judgment is extracted hereunder:- “23. The plaint contains all averments necessary for the plaintiff to sue for the value of the work done. He estimated the amount due towards work done at Rs.2 lakhs and paid court-fee on the said Rs.2 lakhs. Para 23 of the said judgment is extracted hereunder:- “23. The plaint contains all averments necessary for the plaintiff to sue for the value of the work done. He estimated the amount due towards work done at Rs.2 lakhs and paid court-fee on the said Rs.2 lakhs. If the plaintiff-appellant has established that the work could not be completed on account of the breaches on the part of the employer, and also establish that the value of work done by him exceeded Rs.2 lakhs, we find no reason why he should be denied a decree for at least Rs.2 lakhs. Merely because the plaintiff also chose to seek accounting, he cannot be non-suited. This is not a case where the plaintiff had sued only for accounts, paying court fee on a mere Rs.1,000/- under section 35 of the Court Fee Act. The prayer in the suit is for recovery of Rs.2 lakhs towards the value of the work done with an additional prayer for accounting and several other reliefs. In fact, plaintiff did not even seek in the prayer column, a decree for any higher amount, if the amount found due on accounting was found to be more than Rs.2 lacs. If the prayer in regard to accounting was found to be not tenable, that prayer could not be granted. But nothing could come in the way of plaintiff getting a decree for the amounts claimed towards value of the work done for which he has paid the court fee, by proving that such amount was due for work done and by proving that he was not at breach. Having regard to the frame of the suit, we are of the view that the High Court was not justified in dismissing the suit as not maintainable, ignoring the other prayers. The second point is answered accordingly.” (3) The Hon’ble Apex Court in a judgment reported in 2005 (8) SCC 58 , State of U.P. and Another Vs. Brijpal Singh has almost reiterated the said principles in para 10, 11 & 12 of the said judgment, that in a proceedings under Section 33-C(2), when the learned Tribunal has only adjudicated on a complaint under Section 33A or a reference under Section 10 as it was the case involved therein, and it set aside the order and reinstated the workman. The conclusion drawn therein was that the judgment would have to be read only qua the relief, which has been granted in relation to the relief claimed before the Court, exercising its jurisdiction over the matter, which is ceased before it. Paragraphs 10, 11 and 12 of the said judgment are extracted hereunder:- 10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows: "It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act." 11. In the case of Municipal Corporation of Delhi vs. Ganesh Razek & Anr., (1995) 1 SCC 235 , this Court held as under: "12. The High Court has referred to some of these decisions but missed the true import thereof. In the case of Municipal Corporation of Delhi vs. Ganesh Razek & Anr., (1995) 1 SCC 235 , this Court held as under: "12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compare the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity required interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33-C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. 13. In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of "equal pay for equal work" being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petition filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents." 12. In the case of State Bank of India vs. Ram Chandra Dubey & Ors., (2001) 1 SCC 73 , this Court held as under: "7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen. 8. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen. 8. The principles enunciated in the decisions referred by either side can be summed up as follows : Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages" 7. In compliance of the judgement dated 25th September 2019, the petitioner had approached the District Judge, seeking a decision, on the representation which was directed to be decided by the judgement dated 25th January 2019 and the District Judge, by virtue of the impugned order, which is under challenge in the present writ petition, had rejected the claim of the petitioner by the impugned order dated 7th November 2019. 8. The learned counsel for the petitioner contends, that the logic, which has been assigned by the District Judge in his decision of 07.11.2019, is untenable because what he expects is that irrespective of the fact that the petitioner since no more continues to be a registered member of the Bar Association, still he aims and intends to retain the chamber, which he contends that it was allegedly allotted to him. Rather finding to the contrary has been recorded, that as far as the petitioner is concerned, the stand which was taken by the President of the Bar Association before the District Judge, it was observed that the petitioner was not even an applicant to become a member of the Bar Association. Hence, he was not allotted with any specific chamber by the District Bar Association and further it has been observed “that the matter of allotment of chambers and membership are the issues which are in between the advocates, practicing in Dehradun” Not to a non member of the Association. 9. Hence, he was not allotted with any specific chamber by the District Bar Association and further it has been observed “that the matter of allotment of chambers and membership are the issues which are in between the advocates, practicing in Dehradun” Not to a non member of the Association. 9. In that eventuality, when the petitioner's expulsion from the membership of the Bar Association, has attained finality, this Court is of the view that even as per the bye-laws of the societies which are registered under the Societies Registration Act, pertaining to recognising the District Bar Association, as to be a Society, the benefit accruing to for the purposes of allotment of the chamber, would only be extendable to those persons, who are the registered members of the Bar Association, who could be otherwise entitled for allotment or retention of chamber as per the norms, settled for allotment of chamber by either of the Bar Association or as per the guidelines if any which are framed by the District Judgeship of Dehradun, but since here, when the basic foundational claim of the petitioner, that he was not even a member of the Bar Association, which was an action put to challenge and no interference was made by the Court, that itself would disentitled him to be allotted with any chamber in the District Judgeship and consequently, the reason which has been assigned by the District Judge in the impugned order, do not suffer from any apparent error. As such, the writ petition lacks merit and the same is accordingly, dismissed.