Allowed

C.Chokalingam v. Junior Engineer /O &M/Town

Madras HC3 Mar 2017WP/13877/2003

Case brief

AI extract

What is this about?

An injured daily-rated electricity worker was denied alternative work and treated as contract labour. The Court held his direct-employment status binding and applied disability protection. It set aside the award and ordered deemed service, regularisation, full back wages with interest and terminal benefits through superannuation, rather than physical reinstatement.

What did the court decide?

Award set aside; deemed service and regularisation through retirement, full Helper-scale back wages with 12% interest from superannuation, and terminal dues ordered.

C.Chokalingam Vs Junior Engineer /O &M/Town — Labour and Industrial Disputes | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON: 21.02.2017

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DELIVERED ON: 03.03.2017

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CORAM:

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THE HON'BLE MR. JUSTICE P.N. PRAKASH W.P. No.13877 of 2003

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C.Chokalingam ... Petitioner
Vs.
1. The Junior Engineer(O & M/ Town)
Tamil Nadu Electricity Board
Anaicut
Vellore – 632 101
2. The Assistant Executive Engineer (O &M/Town)
Anaicut
Vellore – 632 101
3. The Superintending Engineer
Tirupathur Electricity Distribution Circle
Tirupattur – 635 601
4. The Presiding Officer
Labour Court
Vellore ... Respondents

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Writ Petition filed under Article 226 of the Constitution to issue a writ of certiorarified mandamus calling for the records of the 4th respondent award dated 24.9.2002 in I.D.No.328 of 1998 and quash the same consequently directing the respondents 1 to 3 to reinstate the petitioner in any light work protecting the pay as on 29.3.1996 with back wages, continuity in service and other attendant benefits.

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For petitioner Mr.J.Saravanavel For RR 1 to 3 Mr. Fakir Mohideen R4 Labour Court

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ORDER

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Heard Mr. J. Saravanavel, learned counsel for the petitioner and Mr. Fakir Mohideen, learned counsel for respondents 1 to 3.

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2 This writ petition is filed by the petitioner, who claims to be a workman under the service of the respondents 1 to 3, who are the officers of the Tamil Nadu Electricity Board (now renamed as Tamil Nadu Generation and Distribution Corporation – TANGEDCO). In this writ petition, the petitioner challenges the award dated 24.9.2002 passed by the 4^th respondent-Labour Court in I.D.No.328 of 1998 by which the claim made by him was rejected without any relief.

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3 The writ petition was admitted on 30.4.2003. On notice from this Court, the respondents 1 to 3 entered appearance through their Standing Counsel. However, no counter affidavit was filed by the respondents. The original records from the 4^th respondent-Labour Court was summoned and perused by this court.

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4 The case of the petitioner was that he was appointed as a Helper on daily wage basis in their Anaicut Division since 1981. The wages were paid to him on the basis of payment made through petty cash vouchers, though it was mentioned that he was a contract labourer. He was working continuously till 21.3.1996. On that fateful day, the petitioner fell from an electric pole in which he was working. He suffered grievous injury and was admitted to CMC hospital, Vellore on 29.3.1996 by respondents 1 and 2. He was treated as an in-patient for 14 days and discharged on 11.4.1996. The Professor & Head of the Department of Thoracic & Cardiovascular Surgery gave a certificate dated 24.4.1996 and certified as follows:-

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“This is to certify that Mr.Chokalingam, Hospital No.359932B has been an inpatient in our Hospital from 29-3-96 and he was discharged on 11-496. He was admitted with history of fall from a height with a cement pillar falling across his chest and upper abdomen on 29-3-96. He underwent emergency left anterolateral thoracotomy and an extensive tear in the diaphragm involving both cupola and the pericardium was repaired.

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In view of the operation, he has undergone, he is advised 2 months rest on medical grounds from the date of discharge.”

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5 On 5.7.1996, when he returned to work he was given the same work of climbing the electric poles and repairing the

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lines. The petitioner expressed his inability to do the same work due to his injuries and requested for alternative work. The 1^st respondent refused to provide any alternative employment suitable for the physical condition and the Junior Engineer-In charge told him that he can take sufficient treatment and then, come for work when he is physically fit to do the work relating to climbing of pole. He refused to allow him to do any other work.

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6 The petitioner, in view of his employment injury, filed a compensation case before the Workmen's Compensation Commissioner (Deputy Commissioner of Labour –I, Chennai – 6) claiming a compensation of Rs.2,00,000/-. The said petition was taken on file by the commissioner as W.C.Case No. 200/96 and notice was issued to the official respondents. The official respondents disputed the injury and the medical certificate obtained by the petitioner. Before the Commissioner, the petitioner examined himself as PW1 and on behalf of the official respondents, one Junior Engineer was examined as RW1. The Commissioner framed two issues. The first issue was whether the petitioner was an employee under the respondents and the second issue was what was the loss of earning capacity of the petitioner due to the accident.

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7 In respect of the first issue, Che commissioner held in favour of the petitioner as follows:-

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“bjhHpyhsh; ,Hg;gPl;Lr; rl;lj;jpd; fPH; xU epue;jug; gzpahsh; kl;Lnk bjhHpyhsp vd;w gjj;jpy; tUtjpy;iy/ jw;bray; CHpah; jtpu kw;w midj;J tif CHpah;fSk; ntiyaspg;gthpd; bjhHpy; th;j;jfk; kw;Wk; tpahghukhf ,Ug;gpd; bjhHpyhsp vd;w gjj;jpy; ml';Fth;/ Mfnt. kDjhuiu jw;bray; bjhHpyhsp vd;W TwKoahJ/ vjph;kDjhuuJ ntiyahd kpd; fk;gk; eLtJ. iyd; ,Gg;gJ. bjU tpsf;F khl;LtJ Mfpait kpd;rhu thhpaj;jpd; Kf;fpa gzpfshFk;/ kDjhuh; xg;ge;j bjhHpyhsp vd;Wk; xU xg;ge;jf;fhuh; K:ykhfnt mth; gzpf;F mkh;j;jg;gl;lhh; vd;Wk; gjpYiuapy; vjph;kDjhuh; TwpdhYk;. v/rh/1 ,sepiyg; bghwpahsh; jdJ rhl;rpaj;jpy; kDjhuh; xg;ge;jj; bjhHpyhspahf ntiy bra;jjw;F xg;ge;jk; VJk; ,y;iy. Xg;ge;jf;fhuh; K:yk; mth; ntiy bra;atpy;iy vd;Wk; epue;juj; bjhHpyhsh;fs; 10 ngh; jw;fhypf bjhHpyhsp 10 ngUk; gzpg[hpfpd;wdh; vd;Wk; xg;ge;jj; bjhHpyhsh;fs; Kiwg;go gjpt[ bra;ag;gltpy;iy vd;Wk;. jhd; m';F gzp bra;tjw;F (1995) Kd;djhfnt kDjhuh; ntiy bra;J tUfpwhh; vd;Wk; rhl;rpak; mspj;Js;shh;/ xg;ge;jf;fhuh; K:yk; gzpf;F mkh;j;jg;glhj epiyapy; kDjhuiu vt;thW vjph;kDjhuh; xg;ge;jj; bjhHpyhsp vd;W Fwpg;gpLfpwhh; vd;W bjspthf Twg;gltpy;iy/ vdnt kDjhuh; vjph;kDjhuhpd; neuo CHpah; vd;Wk;. mth; epue;juj; bjhHpyhsp vd;Wk; bjhHpyhsh; ,Hg;gPl;Lr; rl;lg;go mth; bjhHpyhsp vd;Wk; Kot[ bra;fpnwd;/ ””(emphasis added)

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8 Having left with no other alternative to claim relief, the petitioner raised an industrial dispute before the Government Labour Officer, Vellore, through his letter dated 20.2.1998. The Conciliation Officer sent a notice to the respondents. On such notice, the official respondents gave a reply dated 5.6.1998 stating that the petitioner was working as a contract labour in the work relating to laying electricity lines. He was not made to work as a field worker in the vacant posts of Helper. For engaging contract labour, there are no records. He was paid on the basis of contract rates for the work done regarding laying the electric lines and the payments were made through vouchers and his signatures were obtained on the receipts in which revenue stamps were affixed. The incident relating to the accident of falling down and the subsequent treatment were not admitted by them. The petitioner filed a rejoinder statement stating that the stand of the respondents was not correct and after treatment, when he went, he was denied employment. The Conciliation Officer, as he could not bring about mediation, gave a failure report dated 27.7.1998 under Section 12(4) of the Industrial Disputes Act, 1947 (for brevity “the ID Act”).

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9 On the strength of the failure report, the petitioner filed his claim statement dated 15.10.1998 before the 4^th respondent-Labour Court. The dispute was taken on file as I.D. No.328 of 1998 and notice was issued to the respondents. The 1^st respondent filed his counter statement dated 24.2.1999. Respondents 2 and 3 also filed a common counter statement dated 4.5.1999.

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10 Before the Labour Court, the petitioner examined himself as WW1. On his side, though 19 documents were filed, only 11 documents were marked as Exs.W1 to W11. The remaining documents in serial nos.13 to 19 were not marked before the Labour Court in the manner known to law. The order of the Workmen’s Compensation Commissioner made in W.C.Case No.200/96 dated 22.12.97 was marked as Ex.W5. On the side of the official respondents, two witnesses were examined as MW1 and MW2 and on their side, 5 documents were filed and marked as Exs.M1 to M5. The Labour Court held that the important issue to be decided by it was whether the petitioner was a daily rated worker in the respondent Electricity Board or whether he was working as a contract worker.

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11 In the counter statement filed by the 1^st respondent, in para 5, the accident in which the petitioner was involved was admitted and it was stated as follows:

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“Admittedly he fall down from the pole on 29.3.96 without adhering to the instruction of his supervisor and claimed 2 lakhs towards compensation for payment. The case was taken up before the Commissioner of payment of compensation and Application was dismissed.”

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The same person who filed the counter statement (M.Panchatcharam) was examined as MW1 before the 4^th respondent-Labour Court. In cross-examination, he answered as follows:-

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”30.8.92f;F Kd;g[ FHp btl;Ljy;. kpd; fk;gp ,Gj;jy;. fk;gk; eLjy; nghd;w ntiyfs;jhd; bra;J te;jhh;/ fk;gk; xoe;Jnghdjhy; tpgj;J Vw;gl;lJ/ mtiu clnd rp/vk;/rp/ kUj;Jtkidapy; nrh;j;njhk;/ tpgj;J ele;J rpfpr;ir vLj;j gpd;g[ kDjhuh; ntiy bra;a ,aYk;/ rp/vk;/rp/ kUj;Jtkid lhf;lh; kUj;Jt rhd;wpjH; bfhLj;Js;shuh vd;W vdf;F bjhpahJ/ tpgj;J ele;jbghGJ ehd; gzpapy; ,Ue;njd;/ kpd;ghh;it Ma;thsUk; gzpapy; ,Ue;jhh;/ mtUf;F bknkh bfhLj;Js;nshk;/ kpd; fk;gj;ij rhp ghh;j;jpUe;jhy; tpgj;J ele;jpUf;fhJ vd kpd;ghij Ma;thsUf;F fojk; bfhLj;Js;nshk;/ xg;ge;j bjhHpyhsh;fs; ntiyjhd; kDjhuUk; bra;jhh;/ ,g;bghGJ gzpf;F te;jhYk; ntiy bfhLf;f jahuhf , Uf;fpd;nwhk;/ / / / /

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“kDjhuh; ntW xU ,skpd; bghwpahshpd; fPH; ntiy bra;Js;shh;. 1981y; ,skpd; bghwpahsh; (fl;Lkhdk;) ntY}h; mth;fspd; fPH; kDjhuh; gzpg [hpe;jhuh vd;W vdf;F bjhpahJ/ bgl;o nf!; g[j;jfk; !;nll;bkz;L , sepiy kpd;bghwpahsh; mth;fshYk;. cjtp braw;bghwpahsh; mth;fshYk; tH';fg;gl;Ls;sJ/ mit v';fs; mYtyfj;jpy; cs;sJ/ nkw;f;zl Mtzj;jpd; efy; bjh/j/rh/M/11 gp/rp/gp/f;F chpa gzj;ij ntiy Koe;j gpd;g [jhd; bfhLj;njd;/ gprpgpapy; Fwpg;gpl;Ls;s ntiyfis kDjhuh;jhd; bra;jhh;/ kDjhuh; jdpahf ntiy bra;jhuh my;yJ ahuhtJ Ml;fs; itj;Jf;bfhz;L ntiy bra;jhuh vd;gij Mtz';fisg; ghh;j;Jjhd; brhy;y ntz;Lk;/ Mtz';fis jw;nghJ ehd; bfhz;L tutpy;iy/ ” (emphasis added)

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12 In the counter statement filed by respondents 2 and 3, while adopting the counter statement filed by the 1^st respondent in para 2, it was stated as follows:-

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“The petitioner was a contract labour and occasionally engaged for extension works under the control of the first respondent. He was not paid his wages by voucher payment on daily wages basis as claimed by him in the I.D. he was piece rate worker. His nature of duties are transport of poles, execution of erection and dismantling of poles and similar works.”

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Even though the counter statement was filed by respondents 2 and 3, both of them were not examined before the Labour Court. On the other hand, one Assistant Engineer (Construction), Vellore, by name Abraham Benhur Zacharia was examined as MW2. He was appointed in the year 2001. He mainly deposed that Ex.W11 was not fruitful. But, in cross-examination, he said that the officer who maintained Ex.W11 by name Viswanathan was still alive and he was unable to state whether the said Viswanathan had signed Ex.W11.

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13 The Labour Court, in the impugned award, while considering Ex.W5 held that even though it was argued by the petitioner that the finding recorded by the Workmen’s Compensation Commissioner that the petitioner was a workman under the Electricity Board can be accepted only in the absence of any document being filed but the documents filed before it clearly show that he was a contract labour and was paid on the basis of voucher (P.C.B). Curiously, the 4^th respondent-Labour Court, instead of looking into the documents filed before it by the petitioner, went at a tangent and looked in to the unmarked documents in serial no.13 to 19 and on that basis, gave a finding that the petitioner is not a direct workman of the Board, but, only a contract labour. In para 7 of the impugned award, the Labour Court recorded the following finding:

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“kDjhuh; jug;gpy; MWjy; Mtz';fs; jhf;fy; bra;ag;gl;Ls;sjpy; thpir 13 Kjy; 18 tiuapyhd Mtz';fs; FwpaPL bra;ag;gltpy;iy/ Mdhy; ,e;ePjpkd;wj;jpy; jhf;fy; bra;ag;gl;L FwPaPL bra;ag;glhj Mtz';fis ghprPypj;Jg; ghh;f;Fk;nghJ kDjhuh; xg;ge;j bjhHpyhsp vd jhnd xg;g[f;bfhz;L epue;jug;gLj;j ntz;Lbkd;W eph;thfj;jpw;F kD je;Js;shh; vd;gij mwpa Kofpd;wJ/ vdnt kDjhunu xg;ge;j bjhHpyhsp vd xg;g[f;bfhz;L MWjy; foj';fs;; eph;thfj;jpw;F vGjpa[s;shh; vd;gij mwpa Kofpd;wJ/ ”

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14 Since the Labour Court came to the conclusion that the petitioner was only a contract labour and not a daily wages worker, it held that the question of whether he was denied employment unlawfully, cannot be gone into and the petitioner was not eligible for any relief in the dispute. It also held that since it was not a dispute for absorption of contract labour, that issue also need not be decided. However, it gave an unsolicited advice to the respondent Board that in case, the workman is willing to work as a labour contract, he can be permitted. It is in view of this, the Labour Court did not go into the other issue as to whether the petitioner had suffered any injury which disabled him to do the normal work of climbing the poles and perform his earlier work. Aggrieved by the denial of relief, the petitioner is before this court.

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15 Mr.J.Saravanavel, learned counsel for the petitioner contended that inasmuch as the petitioner has completed 240 days of employment during a period of one year service, he is entitled to continue in service, unless he was retrenched after following section 25-F of the ID Act. Unless and until the mandatory condition precedent found in that section is followed, the termination of the service of the petitioner is void ab initio. For this proposition, he relied upon the judgment of the Supreme Court in State Bank of India Vs. N.Sundara Money [(1976) 1 SCC 822. In that case, the Supreme Court held that in such circumstances, a workman is entitled to relief of reinstatement with back wages. In that case, the Supreme Court, in para 10, had observed as follows:-

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“What follows ? Had the State Bank known the law and acted on it, half-a-month's pay would have concluded the story. But that did not happen. And now, some years have passed and the Bank has to pay, for no service rendered. Even so, hard cases cannot make bad law. Re-instatement is the necessary relief that follows. At what point ? In the particular facts and circumstances of this case, the respondent shall be put back where he left off, but his new salary will be what he would draw where he to be appointed in the same post today de novo.”

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16 Mr. Saravanavel further submitted that even in matters of temporary employment, the Court should not go for ordering compensation, but, take a social justice point of view and for this proposition, he placed reliance upon a later judgment of the Supreme Court in Harjinder Singh Vs. Punjab State Warehousing Corporation [(2010) 3 SCC 192]. Reliance was placed upon a passage found in para 31 which is as follows:-

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“It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the Directive Principles of State Policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private.”

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17 There is no doubt that the proposition of law laid down in these two decisions still holds good and binding on this Court. But, the Labour Court had non-suited the petitioner not on the ground of granting compensation, but, it held that the

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dispute itself is not valid as the petitioner is found to be a contract labour and not a daily rated employee of the Electricity Board. Unless that finding is held to be either perverse or not legally valid, the question of looking into these decisions may not arise. The Labour Court itself, in the impugned order, first framed an issue regarding the status of the petitioner and after holding against him dismissed the dispute without granting any relief.

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18 The question whether the petitioner is a direct workman (whether temporary or permanent) of the Electricity Board has to be answered. Admittedly, after the petitioner suffered injury and got treated in the hospital, he had moved Workmen’s Compensation Commissioner in W.C. Case No.200/96 marked as Ex.W5. In that, the very same question was raised for consideration i.e. whether the petitioner was an employee of the Board or a contract labour. Rejecting the contention of the respondent Board, the Commissioner held that the petitioner was a direct workman of the Board. This finding is not disturbed by any authority in any dispute. The Commissioner did not grant any compensation to the petitioner for the employment injury suffered by him. This was on account of the fact that the Workmen's Compensation Act, 1923, enables an injured workman to receive compensation only if he proves that he has lost his earning capacity (whatever may be the percentage of such loss) due to the injury suffered by him arising out of and in the course of his employment. It is only in the cases of a loss of limb found in the schedule to the Workmen's Compensation Act, the presumption of loss of earning capacity can be made. In cases of non-scheduled injuries, if there was any loss of earning capacity, that will have to be proved by adducing sufficient medico-legal evidence before the Commissioner. In Tamil Nadu State Transport Corporation (Villupuram) Limited Vs. S.Gajendran, (C.M.A.No.2021 OF 2015 dated 4.9.2015), a Division Bench of this Court had ruled as follows:

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“The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability”

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19 Therefore, it is immaterial whether the petitioner got a relief of compensation before the Commissioner. He might have lost the case due to want of medical evidence. On the other hand, the finding rendered by the Commissioner, as noted elsewhere, as to whether the petitioner is an employee of the Electricity Board on the basis of an issue raised before him and evidence was let in and also a finding was rendered in this regard is binding on the Electricity Board. Even in subsequent proceedings, it will operate as res judicata between the parties. Unfortunately, the Labour Court committed two grave errors. First, it held that without the other records, if the Commissioner’s order alone (Ex.W5) was before it, it would have helped the petitioner. Secondly, it looked into the unmarked documents without any justification and found that the petitioner was only a contract labour and not a daily paid temporary worker. A finding rendered in an earlier proceeding between the same parties on the same issue will operate as res judicata and no party could have controverted the same in the subsequent proceedings. In this case, even if the Electricity Board had brought in any material that would be of no consequences as the well known principle of res judicata operates against them.

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20 In such proceedings, whether res judicata will operate, came to be considered by the Supreme Court in a catena of cases. It will be necessary to look into them. In Burn & Co. vs. Employees [AIR 1957 SC 38], it was held as follows:

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“That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter in issue between the parties after a full enquiry should not be permitted to be reagitated. It is on this principle that the rule of res judicata enacted in section II of the Civil Procedure Code is based. That section is, no doubt, in terms inapplicable to the present matter, but the principle underlying it, expressed in the maxim "interest rei publicae ut sit finis litium", is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, Tenth Edition, page. 218). "The rule of res judicata is dictated" observed Sir Lawrence Jenkins, C.J. in Sheoparsan Singh v. Ramnandan Prasad Singh(1)."by a wisdom which is for all time". And there are good reasons why this principle should be applicable to decisions of Industrial Tribunals also. Legislation regulating the relation between Capital and Labour has two objects in view. It seeks to ensure to the workmen who have not

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the capacity to treat with capital on equal terms, fair returns for their labour. It also seeks to prevent disputes between employer and employees, so that production might not be adversely affected and the larger interests of the society might not suffer.”

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21 In Workmen of the Straw Board Manufacturing Co. Ltd vs. Straw Board Manufacturing Co. Ltd. [(1974) 4 SCC 681], the said principle was reiterated and it was held as follows:-

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“It is the matter directly and substantially in issue in each case which is of material relevance in determining the question of res judicata in an industrial matter. It is now well established that, although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under section 11 of the Code of Civil Procedure, however, are applicable, wherever possible, for very good reasons. This is so since multiplicity of litigation and agitation and reagitation of the same dispute at issue between the same employer and his employees will not be conducive to industrial peace which is the principal object of all labour legislation bearing on industrial adjudication. But whether a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and the same had been heard and finally decided by the Tribunal will be of pertinent consideration and will have to be determined before holding in a particular case that the principles of res judicata are attracted.”

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22 In The Punjab Co-operative Bank Ltd. vs. R.S. Bhatia (Dead) Through LRs reported in [(1975) 4 SCC 696], the question that came up for consideration was whether a finding as to a person is a workman for the purpose of the ID Act can operate as a res judicata in a subsequent dispute before the labour court. It was held as follows:-

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“The first point urged on behalf of the appellant is that the respondent was not a workman within the meaning of the Act and that the Labour Court committed an error in saying that there was no evidence led on this issue and resting its judgment on the principles of resjudicata on the basis of the decision of Shri Kaul in I.D. No. 66/1962. In our opinion the Labour Court rightly applied the principles of res-judicata to the issue whether the respondent was a workman or not within the meaning of the Act. The same parties in I.D. No. 69/i962 joined issue on the aforesaid

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question. A decision given by the competent Labour Court in that regard has rightly been held as a bar on the principles of res-judicata in the trial of the same issue in the present proceeding.”

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23 Again, in Pondicherry Khadi & Village Industries Board Vs. P. Kulothangan & Anr.[(2004) 1 SCC 68], it was held as follows:-

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“Before us, the appellant has reiterated its stand before the High Court both on the question of res judicata as well as on merits. The respondent has, on the other hand, submitted that even if he was a temporary employee, nevertheless the appellant's refusal to permit him to join was based on allegations of alleged misconduct and that therefore the appellant could not have terminated his service without holding an enquiry and without giving the respondent an opportunity of being heard. On the question of res judicata, it is submitted that the principle will have no application since the issue raised in the earlier writ petition was one of regularisation and not of reinstatement.

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In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code, are applicable1 including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain, it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held:

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"....it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a

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course of action as an abuse of its process", (p.808) The principle of res judicata operates on the Court”

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24 How far the principle of res judicata will have application in industrial adjudication was again considered by the Supreme Court subsequently. It was held that the said principle may not have universal application for all kinds of disputes. For example, when a workman, after the expiry of the previous award or settlement, raises disputes for revision of wages, etc., then, the said principle cannot be invoked. In that context, the judgment in Straw Board Manufacturer’s case was considered by the Supreme Court in its decision in Bharat Barrel & Drum Manufacturing Co.Pvt. Ltd Vs. Bharat Barrel Employees Union [(1987) 2 SCC 591] and it was held as follows:-

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“We would hasten to add that the above observations do not mean that a question which is once decided can never be re-agitated. There are certain classes of cases like dis- putes regarding wage structure, service conditions etc. which arise as circumstances change and new situations arise which may not be barred by the rule of res judicata………….

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The question whether a person was or was not an employee under a management after a particular date is one which cannot be re-agitated in a subsequent case in the circumstances which are referred to above if it has already been decided finally by an Industrial Tribunal of competent jurisdiction in an earlier case where the said question necessarily arose for decision. This case falls within the scope of the decision in Burn & Co.'s case (supra) and in the case of Straw Board Manufacturing Co. Ltd.”

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25 Applying the above principles, it can be certainly held that the finding rendered by the Workmen’s Compensation Commissioner in W.C.Case No.200/96 dated 22.12.97 (Ex.W5) that the petitioner is a direct employee of the respondent Electricity Board is conclusive and binding on the respondents. Therefore, the view taken by the Labour Court that but for the documents filed, it would have rendered a similar finding is neither warranted nor proper. The other conduct of the Labour Court of looking into the unmarked documents which are not proved before it, is also uncalled for and to say the least, it is perverse. Once if it is held that the petitioner is a direct employee of the respondent board, the next question is as to the nature of relief that he is entitled to in the dispute. The Labour Court after holding the petitioner was not an employee did not go into the relief portion of the issue framed by it. On that ground, the matter need not be remitted back to the

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Labour Court for fresh consideration, especially when the matter is more than 20 years old since the date of non-employment. In such circumstances, this Court itself can mould the relief in the light of the extraordinary jurisdiction vested with it under Article 226 of the Constitution of India.

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26 In a more or less in a similar situation, the Supreme Court, in Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha & others [(1980) 2 SCC 593] held that such an award can be corrected by an High Court under Article 226 of the Constitution. It was observed as under:-

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“the Gujarat High Court in Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd. observed that the amended Article 226 would enable the High Court to interfere with an Award of the industrial adjudicator if that is based on a complete misconception of law or it is based on no evidence or that no reasonable man would come to the conclusion to which the Arbitrator has arrived. Even apart from, but while approving, the Gujarat ruling in 19 G.L.R. p. 108 cited before us, we are satisfied that the writ power is larger given illegality and injustice, even if its use is severely discretionary as decided cases have repeatedly laid down. We over-rule the objection of invalidity of the High Courts order for want of power.”

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27 It has been an admitted fact that the petitioner, while, he was in employment, climbed a pole and fell down during the course of his work. That we was taken to CMC Hospital by the respondents was also accepted in the counter statement and also admitted by MW1 during the cross-examination. The petitioner might not have suffered a scheduled injury as per the Workmen's Compensation Act since he did not suffer any loss of limb. But, that is not a conclusive factor whether he was disabled from doing the same work of climbing on the pole for laying the electricity lines. The fact remains that he asked for alternative employment and the same was denied and he was insisted to perform the same duty which made him go before the Commissioner to seek for compensation.

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28 Though the petitioner, in his pleadings and documents produced, had claimed that he was working since 1981 and produced Ex.W1, the Junior Engineer examined (MW1) had admitted that he has been working since 1986. The fact that he was paid on the basis of vouchers (P.C.B) is immaterial to decide the status of the petitioner. On the other hand, there is no contractor under whom the petitioner was said to be working. Such paper arrangements for keeping a different type of employment can never be accepted in industrial adjudication. The

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fact that a daily rated worker like the petitioner had produced such vouchers is unthinkable. In such circumstances, the issue as to who is a worker under the labour enactment, came to be considered by the Supreme Court and in Hussainbhai, Calicut vs Alath Factory Thozhilali Union [(1978) 4 SCC 257], it was held as follows:-

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“Indian Justice, beyond Atlantic liberalism, has a rule of law which runs to the aid of the rule of life. And life, in conditions of poverty aplenty, is livelihood and livelihood is work with wages. Raw societal realities, not fine-spun legal niceties, not competitive market economics but complex protective principles, shape the law when the weaker, working class sector needs succour for livelihood through labour.

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The true test may, with brevity, be indicated once again. Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers' subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off. The presence of intermediate contractors with whom alone the workers have immediate or direct relationship ex contractu is of no consequence when, on lifting the veil or looking at the conspectus of factors governing employment, we discern the naked truth, though draped in different perfect paper arrangement, that the real employer is the Management, not the immediate contractor…

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Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like, may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43 and 43-A of the Constitution. The court must be astute to avoid mischief and achieve the purpose of the law and not be misled by the maya of legal appearances.

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If the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefits and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond.

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The story may vary but the inference defies ingenuity. The liability cannot be shaken off.”

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29 Section 2(ra) of the ID Act defines that all items listed out in the V Schedule to the Act as unfair labour practice. Part I, item 10 of the schedule reads as follows:-

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“To employ workmen as ‘badlis’, as casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.”

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Under section 25-T, both employers and workmen have been prohibited from committing any unfair labour practice. Section 25-U makes the commission of unfair labour practice, a criminal offence by which an employer can be imprisoned for 6 months with a fine of Rs.1000/- if it is proved that he had committed unfair labour practice. The said provision is mandatory.

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30 The Supreme Court, in its judgment in Maharashtra SRTC Vs. Casteribe Rajya P. Karmchari Saghatana [(2009) 8 SCC 556], while dealing with a similar unfair labour practice found under Bombay Industrial Relations Act, 1946 held as follows:-

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“Employing badlis, casuals or temporaries and to continue them as such for years , with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer.”

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31 In the present case, the official respondents, on seeing the accident met by the petitioner, were kind enough to admit him in the nearby hospital. Thereafter, they conveniently forgot about him and even disowned him before the Commissioner as well as the Labour Court. A State-owned undertaking like the respondent Electricity Board is not expected to behave in such a fashion and their conduct should be that of a model employer. In this case, when the petitioner, after his recovery, reported for duty and asked for a lighter work / alternative work, they did not give him such a work, in which case, as rightly contended by the learned counsel for the petitioner, the action of the official respondents is nothing but a termination of the services of the petitioner and it can be held as a retrenchment within the meaning of section 2(oo) of the ID Act. The petitioner is entitled to the relief of reinstatement with all consequential benefits.

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32 If, for any reason, the official respondents want to take a stand that due to the injury suffered by the petitioner, he is unable to perform his duties and therefore, it could be deemed as continued ill health coming within the exception carved out under Section 2(oo)(c) of the I.D. Act wherein the termination of the service of workmen on the ground of continued ill health is justified, the question of compliance of section 25F may not arise. But, in such circumstances, the law requires that the worker must be sent for appropriate evaluation by a competent medical board and there must be evidence of the medical disability. But, the law on the subject has undergone a change in view of subsequent legal development.

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33 Fortunately, that if a workman working in either government service or any other public sector undertaking (like the respondent) then the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter known as “the Disability Act”) has come into force with effect from 1.1.1996. Section 47 of the Disability Act reads as follows:-

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“Non-discrimination in Government employments.—

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(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

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(2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”

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34 When the petitioner sought for alternative employment on the ground of his having difficulty/disability in performing the earlier work of climbing poles and if his request is doubtful, it was obligatory on the part of the respondent Electricity Board to have referred the petitioner for examination by a competent medical board. Even if the board had certified that he was unfit to do any work due to his

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disablement, then, Section 47 protects his service condition, as noted above. The fact that the petitioner, who was drawing Rs.10/- per day and employed as a casual labour, did not quote the legal provision for his relief will not absolve the respondent Board from their legal obligations.

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35 In an identical circumstance, in respect of an employee of the Punjab Electricity Board, the Supreme Court considered a similar plea in terms of the Disability Act in its decision in Bhagwan Dass v. Punjab State Electricity Board [(2008) 1 SCC 579] and held as follows:-

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“From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Boards rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable. We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good

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money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.....“

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36 In that very case itself, the Supreme Court, having found that the workman had the benefit of the Disability Act and that the Electricity Board did not comply with the provisions under the Act, gave the following relief to him:“In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records.”

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37 In the present case, the Labour Court failed to keep the legal parameters for grant of relief to the petitioner which obliges this Court to interfere. The petitioner is entitled to the benefits sought by him and accordingly, the impugned award of the Labour Court made in I.D.No.328 of 1998 dated 24.9.2002 will stand set aside.

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38 The petitioner, in the affidavit filed in support of the writ petition, has given his age as 48 years and in view of the pendency of the writ petition for the last 14 years he would have reached the age of 62 years which is well past the age of superannuation in the respondent Board. Hence, he cannot be physically reinstated, though he had the protection of Section 47 of the Disability Act. But, he is eligible for similar relief granted by the Supreme Court in the case relating to Punjab Electricity Board (supra).

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39 In view of the provisions of Section 47 of the Disability Act, the petitioner must be deemed to be in service with effect from 29.3.1996 and he would be entitled to all service benefits, including regularisation of his service till the date of his actual retirement. The respondent Board shall pay full back wages from the date of his non-employment i.e. 29.3.1996 till the date of his actual superannuation, within a period of two months from the date of receipt of a copy of this order. The Board oard cannot calculate the back wages on the basis of last drawn wage of the petitioner and must calculate by bringing him on a scale of pay applicable to the last category of Helper and give due fitments and increments, based upon the successive settlements and orders. The amount of back wages to be paid to the petitioner will carry an interest at the rate of 12% from the date of his superannuation till the date of his payment. Since during the pendency of this writ petition, he had reached the age of superannuation without enjoying the fruits of reinstatement, the Board is also directed to pay all the terminal dues payable to a last grade employee including gratuity, Provident Fund and pension, if any and settle the same within a period of three months from the date of this order. Since a daily rated employee like the petitioner was made to run from pillar to post, the respondent electricity board (TANGEDCO) is directed to pay costs of this proceedings quantified at Rs.10,000/- to be payable to the counsel for the petitioner within four weeks from the date of receipt of a copy of this order.

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The writ petition is allowed to the extent indicated above. No costs.

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Sd/Assistant Registrar(CS II)

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//True Copy//

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Sub Assistant Registrar

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To:

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