IMPORTANT POINT
Where employment was given in a particular scheme and terminated with scheme ending, employee could not be said to have a right to be regularised in service or claim benefit of Section 25F of Industrial Disputes Act.

Headnote:Industrial Disputes Act, 1947-Section 25F-Civil Procedure Code, 1908-Section 11-Respondents were employed on daily wages in a scheme to provide drinking water and construction of roads-Employment commenced in 1993 and service then were terminated in 1996-Writ Petitions were filed for regularisation-Relief was denied holding that life of scheme had come to an end-Appeal was dismissed by Division Bench-References before Labour Court-Order of termination was set aside on ground that having worked for more than 240 days provisions of Section 25F of the Act were required to be complied with-Court ordered reinstatement with 50% back wages-Award was upheld in writ and appeal-Appeal-Whether relief prayed before Labour Court was barred by res-judicata? Yes.
       Held : We have noticed hereinbefore that although the principal plea of the Respondents in the said writ petition was for regularization of their services but they had also prayed for issuance of a writ of mandamus or for a direction not to discontinue their services as also payment of arrears of salary from September 1996 onwards, difference or arrears of salary from the date of completion of 240 days and to grant all service benefits as applicable to regular employees like seniority, promotion, increments, allowance etc. The said prayer in the said writ applications had a direct nexus with the orders of termination of their services. A finding of fact having been arrived at that their services had been terminated and they were not entitled to continue in service, in our opinion, the legality or otherwise of the said purported orders of termination could not have been the subject-matter of proceedings under the Industrial Disputes Act; for the reason that if the Respondents herein were not entitled to continue in their services by reason of the judgment of the High Court, the question of their reinstatement with back-wages would not arise. The Respondents herein approached the High Court with full knowledge that their services had been terminated. Their attempt to show that they were still in service had been disbelieved and it was found as of fact that their services had been terminated on 19.10.1996. The Respondents, therefore, while filing the writ application were bound to lay their whole claim having regard to the provisions contained in Order II Rule 2 of the Code of Civil Procedure or the principles analogous thereto. The very basis upon which the writ petitions were based was found to be incorrect. It was, thus, obligatory on the part of the Respondents herein to question their orders of termination upon placing correct facts before the High Court. They did not choose to do so. They did not pray for and obtain any leave of the court to raise the contention about the legality or otherwise of the orders of termination before an appropriate forum. Furthermore, their plea to the effect that they were entitled to continue in service was specifically rejected. In that view of the matter, the proceedings initiated before the Labour Court questioning the orders of termination passed against them by the Appellants praying for their reinstatement will full back-wages, in our opinion, was wholly misconceived. Such a plea was barred under the principle of Res Judicata. (Paras 12 to 14)
       It is no doubt true, as has been contended by Mr. Maruthi Rao, that the burden of proof that the Respondents were employed against a particular Scheme was on the Appellants but such a burden stood discharged and in any event the said question was no longer alive having regard to the decision of the Karnataka High Court in the earlier writ petitions. The plea raised before us by the Respondents to the effect that their termination of employment fell within sub-clause (bb) of clause (oo) of the Industrial Disputes Act, apart from having not been raised before the Labour Court and the High Court, in our opinion, is not available to them having regard to the decision of the High Court in the writ petitions filed by the Respondents. (Paras 16 and 17)

JUDGMENT

S.B. Sinha, J.-These appeals arise out of the judgments and orders dated 9.11.2000 and 20.11.2000 passed by the High Court of Karnataka at Bangalore in Writ Appeal Nos. 2756-57 of 2000 and 2759 of 2000 respectively whereby and whereunder the appeals preferred by the Appellants herein against the orders dated 14.2.2000 and 15.2.2000 passed by the learned Single Judge of the said court in several writ petitions were dismissed.

FACTS :

2. The Respondents were originally employed on daily wages in relation to a Scheme known as Kriya Scheme aimed at providing drinking water and construction of roads for the benefit of the rural poor in the District of Gulbarga in the State of Karnataka. The employment allegedly commenced in the year 1993. The services of the Respondents were terminated in 1996. They filed writ petitions before the Karnataka High Court contending, inter alia, that as they having worked for a number of years, became entitled for regularization. It was furthermore contended that they had still been in service. The prayers made in the said writ petitions which are relevant for our purpose are as under:

"a) Issue a writ of mandamus order or direction directing Respondents No.2 & 3 to regularization (sic for regularize) the service of the petitioner No.1 to the post of Assistant Engineer in the pay scale of Rs. 2050/- with allowance, the petitioners No.2 and 3 as Junior Engineers in the pay scale of Rs. 1520/- and allowance.

b) Issue a writ in the nature of mandamus order or direction not to discontinue the service of the petitioners and to direct payment of arrears of salary from September 1996 onwards and also to pay difference or arrears of salary to the petitioners from the date of completion of 240 days to grant all service benefits as are applicable to regular employees like seniority, promotion, increments, allowance etc."

3. The said writ petitions came up for consideration before a learned Single Judge of the Karnataka High Court.

4. We may further notice that along with the said writ petitions, the Respondents herein annexed two documents wherefrom it appeared that they had allegedly continued to work beyond 19.10.1996, the date of termination of their services. Upon an inquiry made in this behalf at the behest of the High Court, it was contended by the Appellants by filing an additional affidavit that no payment for daily wages had been made to the Respondents after the order of their discharge and such certificates had been procured from a Junior Engineer against whom a departmental inquiry had been initiated. It was further pointed out that author of one of the documents had himself disowned the said letter in terms of a communication annexed to the said additional affidavit.

In the said writ petitions, two questions fell for consideration:

"1) Whether the petitioners continued in employment of the Respondents beyond the 19th of October, 1996; and 2) Whether they are on the basis of the service rendered as daily wager entitled to an order of regularization?"

5. By reason of a judgment and order dated 1.12.1997, the learned Single Judge held that having regard to the fact that their services had been discontinued, the question of a direction being issued for continuance of their services does not arise having regard to the fact that the life of the Scheme had come to an end. As regard the claim for regularization even on the basis of the services rendered by the Respondents upto October 1996, it was held that they were not entitled thereto in law.

6. The writ petitions were, thus, dismissed. An appeal preferred thereagainst was also dismissed by the Division Bench of the said High Court by an order dated 19.3.1998. Despite the same, the Respondents herein filed applications before the Labour Court at Gulbarga which were marked as Reference Nos. 495 of 1998, 484 of 1998 and 498 of 1998. In the said Reference Applications, the Respondents did not disclose that the High Court

Click Here to Read the rest of this document

2004 Supreme(SC) 1177

IMPORTANT POINTWhere employment was given in a particular scheme and terminated with scheme ending, employee could not be said to have a right to be regularised in service or claim benefit of Section 25F of Industrial Disputes Act.

Cases Referred (6)

IMPORTANT POINT
Where employment was given in a particular scheme and terminated with scheme ending, employee could not be said to have a right to be regularised in service or claim benefit of Section 25F of Industrial Disputes Act.