Letters Patent Appeal No. 1272 of 2011 · Patna High Court · 2011
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1272 of 2011 In Civil Writ Jurisdiction Case No. 1571 of 2006 With Interlocutory Application No. 6272of 2011 In Letters Patent Appeal No. 1272 of 2011 ====================================================== 1. The State of Bihar. 2. The Secretary-Cum-Commissioner, Department of Public Health and Engineering, Government of Bihar, Patna. 3. The Engineer-In-Chief Cum Special Secretary, Department of Public Health and Engineering, Government of Bihar, Patna. 4. The Chief Engineer, Department of Public Health and Engineering, Government of Bihar, Patna. 5. The Superintending Engineer, Public Health and Engineering Department, Circle Motihari (East Champaran). 6. The Executive Engineer, Public Health & Engineering Division, Dhaka, District-East Champaran, Bihar. .... .... Petitioners/Appellants Versus 1. The Presiding Officer, Labour Court, Motihari. ….. Respondent /Respondent 1st Set. 2. Rajan Kumar S/O Shri Devendra Prasad Srivastava, Resident of village & Post-Bakane Kalan, P.S.-Patahi, District-East Champaran. 3. Shri Vijay Kumar S/O Shri Lal Bahadur Prasad, Resident of village & Post-Gamahariya Kala, P.S.-Chauradano, District-East Champaran.
Legal Reasoning
4. Ram Vinod Thakur, S/O Shri Rajeshwar Thakur, Resident of village- Ratanpur, P.O.-Ram Krishna Kabchahi, P.S.-Saraiya, District-Muzaffarpur. 5. Rama Kant Mahto S/O Achey Lal Mahto Resident of Village-Dharharwa, P.S.-Chiraiya, District-East Champaran. 6. Din Bandhu Sah, S/O Shri Shiv Nath Prasad Shah, Resident of village- Sarpania, P.O.-Panchpakari, P.S.-Dhaka, District-East Champaran. .... .... Respondents/Respondents 2nd Set. ====================================================== With Civil Writ Jurisdiction Case No.6330 of 2010 2 Patna High Court LPA No.1272 of 2011 (8) dt.10-09-2013 2 / 7 ====================================================== Ram Vinod Thakur, S/O Shri Rajeshwar Thakur, R/O Village- Ratanpura, P.O.-Ram Krishna, Dubiyahi, Distt-Muzaffarpur. .... .... Petitioner 1. The State of Bihar Versus 2. The Secretary, Labour and Employment, Bihar, Patna 3. The Engineer-In-Chief-Cum-Special-Secretary, Public Health and Engineering Department Bihar, Patna 4. The Regional Chief Engineer, Public Health and Engineering Department Regional Office, Muzaffarpur 5. The Superintending Engineer, Public Health and Engineering Department Motihari 6. The Executive Engineer, Public Health Engineering Division, Dhaka, Distt-East Champaran .... .... Respondents ====================================================== Appearance: (L.P.A. No. 1272 of 2011) For the Appellants : Mr. Ram Kishore Singh, A.C. to AAG 2 For the Respondents : Mr. Ashok Kumar Singh, Sr. Advocate. Ms. Manisha Singh, Advocate. For the respondent no. 6: Mr. Brajesh Kumar, Advocate. (In CWJC No.6330 of 2010) For the Petitioner : Mr. Uday Prakash Sharma, Advocate. For the Respondent-State: Mr. H.P.Singh, G.A. 8 Mr. Pankaj Kumar, A.C. to G.A. 8 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 8 10-09-2013 This Appeal under Clause 10 of the Letters Patent has
Decision
been preferred by the writ petitioner- the State of Bihar against the judgment and order dated 27th January 2011 passed by the learned 3 Patna High Court LPA No.1272 of 2011 (8) dt.10-09-2013 3 / 7 single Judge in CWJC No. 1571 of 2006. The matter at dispute is the termination of service of the respondents- workmen employed under the Executive Engineer, Public Health & Engineering Division, Dhaka, District- East Champaran, Bihar. The workmen were appointed by the Executive Engineer in December 1992 without following due process of law. According to the appellants, the service of the workmen was terminated in March 1994 after giving each workman opportunity of hearing. The said order of discharge was challenged by the workmen and many others before this Court under Article 226 of the Constitution in CWJC No. 12074 of 1993. The said petition came to be dismissed on 23rd June 1994. The order was challenged before the Hon’ble Supreme Court in SLP No. 2865 of 1995 that came to be dismissed on 6th November 1995. Undeterred by the order of the High Court or of the Hon’ble Supreme Court, the workmen raised industrial dispute against the order of discharge. The dispute was referred to the Labour Court, Muzaffarpur and registered as Reference Case No. 16/1998. Pending the reference case, the same was transferred to the Labour Court, Motihari and re-numbered as Reference Case No. 1/2000. The said reference case was allowed by the Labour Court, Motihari on 21st October 2003. The Labour Court held that the discharge of the workmen was in contravention of Section 25- F of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). In view of the said finding, the Labour Court passed award in favour of the workmen directing their reinstatement in service with full back wages. Feeling aggrieved, the State Government approached 4 Patna High Court LPA No.1272 of 2011 (8) dt.10-09-2013 4 / 7 this Court in above CWJC No. 1571 of 2006. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. Learned advocate Mr. Ram Kishore Singh has appeared for the appellants- the State Government. Mr. Singh has, at the outset, submitted that the workmen having availed of the remedy before this Court under Article 226 of the Constitution in CWJC No. 12074 of 1993, the same having been dismissed by this Court and the challenge before the Hon’ble Supreme Court having failed, the workmen could not have approached the Labour Court under the Act. The contention was at first contested by the learned counsel Mr. Ashok Kumar Singh appearing for the workmen. In support of the aforesaid submission, the State Government has produced copy of the appeal memo before the Hon’ble Supreme Court to prove that the respondents workmen were party appellants before the Hon’ble Supreme Court. Mr. Ram Kishore Singh has also submitted that the appointment of the workmen under the Executive Engineer, Public Health and Engineering Division having been made in contravention of the statutory rules governing appointments in the public employment the same could not have been saved. The workmen were given opportunity of hearing before their discharge from service. Their discharge from service was legal and valid. In support of his submissions, he has relied upon the judgment of the Hon’ble Supreme Court in the matter of U.P. State Road Transport v. Man Singh, {2006(4) PLJR SC 207} and the judgment of a Full Bench of this Court in the matter of Ram Sevak Yadav v. The State of Bihar & Ors., {2013(1) PLJR 964(F.B.)}. Learned counsel Mr. Ashok Kumar Singh has appeared for the workmen. He has contested the Appeal. At the 5 Patna High Court LPA No.1272 of 2011 (8) dt.10-09-2013 5 / 7 outset, he has submitted that any challenge by the State Government to the award of the Labour Court is not maintainable. He has submitted that the reference to the Labour Court was made by the State Government. The State Government having made the reference to the Labour Court, it is not open to the State Government to challenge the award of the Labour Court. He has submitted that may be, the reference was made by the Labour Department and the contesting department was the Public Health Engineering Department, both being the limbs of the State Government; it is one and the same. The contention is recorded with a view to rejecting the same. Mr. Ashok Kumar Singh has next submitted that the State Government has perpetrated fraud by producing memo of appeal filed in the Hon’ble Supreme Court in the present Appeal. He has submitted that the State Government should have known all along that the workmen were the parties in the earlier proceedings. Nevertheless, the same was not brought on record until the stage of the Letters Patent Appeal with a view to depriving the workmen of their right to dispute the factum of their being parties in the earlier proceedings. This contention also deserves to be rejected outright. Mr. Ashok Kumar Singh has supported the award of the Labour Court. He has strenuously urged that the State Government did not contest the reference made to the Labour Court. The award is, therefore, not open to challenge now. We do not see any merit in this contention. In support of his contention, Mr. Ashok Kumar Singh has relied upon the judgments of the Hon’ble Supreme Court in the matters of The Cooper Engineering Ltd v. P. P. Mundhe,{AIR 1975 SC 1900}; of 6 Patna High Court LPA No.1272 of 2011 (8) dt.10-09-2013 6 / 7 Shankar Chakravarti v. Britannia Biscuit Co. Ltd. & Anr., {AIR 1979 SC 1652}; of S. P. Chengalvaraya Naidu v. Jagannath And Ors,{ (1994) 1 SCC 1} and of this Court in the matter of The Superintending Engineer v. P. W .D. Workers’ Union & Ors.,{1995 (1)PLJR 303}. Mr. Ashok Kumar Singh has submitted that the jurisdiction of the High Court under Article 226 of the Constitution is totally different from the jurisdiction of the Labour Court deciding the reference made under Section 10(1) of the Act. The considerations are different. The order made by the High Court, therefore, shall not debar the Labour Court from deciding the reference made before it. He has further submitted that the State Government while discharging the workmen from service had failed to comply with Section 25-F of the Act. The necessary consequence should be setting aside the order of termination of service, reinstatement in service and the payment of back wages. We have considered the above referred judgments relied upon by the learned advocates. We have no reason not to agree with the principles laid down in these judgments. But, the same shall not apply in the present dispute. The matter having been decided once by this Court and by the Hon’ble Supreme Court, it was not open for challenge before the Labour Court. It is evident that the Labour Court entertained and decided the reference on the premise that the respondents workmen were not party to the proceeding before this Court or before the Hon’ble Supreme Court. It is categorically recorded by the Labour Court that the workmen had made the statement on oath that they were not party to the proceedings before this Court. Thus, the workmen are also guilty 7 Patna High Court LPA No.1272 of 2011 (8) dt.10-09-2013 7 / 7 of misrepresentation and of misleading statements before the Labour Court. Now, it is proved before us by production of the appeal memo before the Hon’ble Supreme Court that the respondents workmen also were the appellants before the Hon’ble Supreme Court and were the writ petitioners before this Court in CWJC No. 12074 of 1993. Besides, even in case of violation of Section 25-F of the Act, when the recruitment to a public service is governed by the statutory rules of eligibility and procedure, illegal appointments cannot be perpetuated under the guise of violation of Section 25-F of the Act. For the aforesaid reasons, the Appeal is allowed. Impugned judgment and order dated 27th January 2011 passed by the learned single Judge in CWJC No. 1571 of 2006 is set aside. CWJC No. 1571 of 2006 is allowed. The judgment and award dated 28th June 2005 passed by the Labour Court, Motihari in Reference Case No. 1/2000 is quashed and set aside. Reference Case No. 1/2000 (16/98) is rejected. Interlocutory Application stands disposed of. Re. C.W.J.C. No. 6330 of 2010: In view of the above order, this petition is dismissed. (R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Sujit/Sanjeet-