DARSHAN SINGH Vs. PRESIDING OFFICER

JUDGEMENT

(1.) ALL the three petitions are litigations inter se between the Cooperative Society represented through the liquidator and a workman who was originally appointed as a sales person in the society on 01.10.1968. CWP No. 5035 of 1991 is at the instance of the workman challenging the award of the Labour Court denying him the back wages from the date of suspension which was issued on 27.04.1974 but provided back wages only from the date when a reference was made for adjudication in the year 1987. CWP No. 12393 of 1991 is a challenge to the same award by the society on a plea that the adjudication rendered by the Labour Court through the demand notice was after an initial dismissal of the petition for default against the order of retrenchment. The contention in the writ petition is that the subsequent reference made at the instance of the workman is barred by res judicata. Pursuant to the order originally passed by the Labour Court directing reinstatement, the workman had been actually reinstated as well and retrenched again on 28.06.1991 after purporting to follow the provisions under Section 25 -F of the Industrial Disputes Act. The workman issued a demand notice again complaining that the notice was not in accordance with law and the Labour Court allowed the reference holding that the termination effected even while the writ petitions were pending on an earlier order was bad in law. There was also a complaint by the workman that there had been violation of Section 25 -G and 25 -H of the Industrial Disputes Act. The Labour Court held that there had been such violation and the challenge presently in CWP No. 11483 of 1995 by society is that there was no pleading for violation of Section 25 -G and 25 -H and that further the termination effected after due notice under Section 25 -F was not considered at all on its merits but the Labour Court had wrongly dealt with the issue by raising the question that retrenchment would not have been possible when there were already writ petitions challenging the order of reinstatement and the claim for back wages. It is also the contention on behalf of the society that the society was ordered to be wound up and there had been a closure of the affairs of the society and consequently, a direction for reinstatement was not competent.

(2.) THE first issue of whether there could have been a valid reference when the first reference had been dismissed for default would require to be undertaken. The facts reveal that an action for suspension was taken when the workman was alleged to have committed embezzlement of the funds of the society. A criminal case had also been simultaneously prosecuted against the workman. The prosecution of the criminal case was itself taken as the basis for circulating a resolution for termination of services by resolution of the Board which was also the basis for termination from service on 13.07.1997. A liquidator was appointed for the society for winding up on 11.09.1980 and the workman served a demand notice on 25.08.1982 complaining of the termination as invalid. Since the termination was brought about without holding any enquiry but taking the prosecution of the criminal case itself as the basis, the workman pointed out that since he had been acquitted of the criminal charge by the Criminal Court on 06.03.1981, there existed no subsisting reason to let the termination order to continue. It appears that a reference which was made on the basis of demand notice was dismissed by the Labour Court on 28.05.1986. The award of dismissal had also been published on 18.07.1986. An application for restoration was filed by the workman after the publication of the award and it was dismissed by the Labour Court on merits that there existed no ground for entertaining the application.

(3.) ON the ground that the second reference was not maintainable on account of res judicata, I must observe that the res judicata is a principle enunciated through Section 11 CPC and though it relates to proceedings before the Civil Court, the principles are applied also in proceedings similar to Civil Court proceedings. Section 11 operates in cases where there is an adjudication rendered between the parties on the same issue on merits. A dismissal of an application in default cannot be taken as a dismissal on merits and consequently, the principle does not apply. A bar to a fresh suit when an earlier suit was dismissed for default is found under Order 9 Rule 9 CPC which contemplates that if the suit is dismissed for default, a fresh suit on the same cause of action cannot be made unless an application for restoration is made and the Court for adequate reasons restores the suit and allow for a fresh adjudication. Learned counsel appearing on behalf of the petitioner would refer to me a decision of the Supreme Court and a decision of the Division Bench of this Court both of which held that if the order is passed ex parte by the Labour Court and an award is also published, an application for setting aside the ex parte decree is not competent since the Labour Court becomes functus officio on publication of the award. This proposition is laid down in M/s. Sangham Tape Company Vs. Hans Raj : (2005) 9 SCC 331 and to the same proposition, there is a Division Bench ruling of this Court in Omi Ram Vs. Presiding Officer, Industrial Tribunal, Rohtak and another : 2005(3) LLJ 496. The argument of the learned counsel for the society is that the principle of what is stated by the Supreme Court in relation to ex parte proceeding must apply a fortiori to proceedings for restoration of reference dismissed for default as well.