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2008 Supreme(Pat) 180
PATNA HIGH COURT
S.K.Katriar and Kishore K.Mandal JJ.
Sanjay Kumar Tiwary & Others
Versus
State Of Bihar
Letters Patent Appeal No. 1525 of 1999 ;
Decided On : JANUARY 25, 2008
Headnote:Industrial Disputes Act, 194/-Section 25F-Retrenchment-Termination of employment of a daily wage employee cannot give rise to an industrial dispute-Such a person is not within the sweep of the Act-An employer terminating the employment of daily wager is not required to follow the provisions of Section 25F and is not required to serve notice, pay compensation etc. (Para 7)
Constitution of India-Articles 226 and 227-lndustrial Disputes Act, 1947-Sections 2(oo)(bb) and 25F-Duties, functions and powers of High Court under Articles 226 and 227 is of the widest amplitude and is meant to correct errors of law-Power of interference may extend to quashing of mistakes apparent on the face of record and also to ensure that Tribunal. functions within the limits of its powers-Order of an authority or a tribunal can always be corrected if it has excluded its jurisdiction or has acted in ignorance or violation of statutory provisions-Award in question is manifestly after ignoring the provision of Section 2(oo)(bb) and is absolutely illegal, void ab initio and fit to be ignored-Reinstatement of petitioners by order of writ court becomes nonest in law. (Paras 7 to 11 and 16)
AIR 1984 SC 976-Distinguished.
AIR 1961 SC 1457; AIR 1962 SC 1621; AIR 1962 Patna 72; AIR 1966 SC 1061; (1986)1 LLJ 195, 1991(1) PLJR 567; (1996)10 SCC 597; (2006)4 SCC 1; (2007)1 SCC 575; AIR 1955 SC 233; AIR 1958 SC 398; AIR 1961 SC 970; (1997)5 SCC 536, (1999) 1 SCC 566, (1971)2 All.ER. 397 : (1971) 1 WLR 676 at 684-Referred to.
SUDHIR KUMAR KATRIAR, J.
1. Seven appellants have preferred this appeal under clause 10 of the Letters Patent of the Patna High Court, and are aggrieved by the order dated 2.11.1999, passed in C.W.J.C. No.10265 of 1998 (Sanjay Kumar Tiwary and others Vs. The State of Bihar and others), whereby the writ petition has been allowed in part. We shall go by the description of the parties occurring in the writ petition.
2. The facts essential for disposal of this appeal are not in dispute and may be indicated. The writ petitioners (appellants herein) were appointed as a Basic Health Worker or Peon on daily-wage basis in 1991, and continued for about one year or so. Their services were terminated by order dated 10.10.1992, leading to C.W.J.C. No.11289 of 1992. By order dated 6.1.1993, the petitioners had withdrawn the same to seek remedy before the appropriate court under the Industrial Disputes Act 1947 (hereinafter referred to as the Act), which was followed by Reference Case No. 8 of 1994 in terms of Section-10 (1) (c) of the Act, before Labour Court, Chapra. The same was answered in favour of the workmen (the writ petitioners), the order of termination was held to be unreasonable and illegal, and they were entitled to reinstatement with arrears of salary. It was further held that they were entitled to regularization of service. The respondent authorities issued, order dated 30.12.1995 (Annexure-5), whereby they were reinstated in service and were regularised as Basic Health Workers or Peons, and were given appropriate pay-scales.
2.1) This was followed by C.W.J.C. No.9981 of 1996, at the instance of the workmen for payment of their salary due since 10th of January 1996. The same was disposed of on 27.6.1997 (Annexure-10) with a direction to the respondent authorities to reinstate the petitioners at least on daily-wage basis, to give effect to the order of regularization if the order of the Labour Court was still subsisting, and for further direction for payment of the salary, all after verification. In the meantime, complaint petition was filed against the concerned authorities for non-implementation of the Award and cognizance was taken. The accused persons preferred Cr. Revision No.36/3 of 1997, wherein the learned Sessions Judge had at the initial stage stayed the order of cognizance, but ultimately rejected the revision application by his judgment dated 20.5.1998.
2.2) The respondent authorities had thereafter issued order dated 16.10.1998, followed by the consequential order dated 17.10.1998 (Annexure-1), whereby the services of the petitioners were dispensed with and has been challenged in the present C.W.J.C. No.10265 of 1998. It is relevant to state that the petitioners did not challenge the primary order of termination of 16.10.1998, but had instead challenged the consequential order dated 17.10.1998, whereby they were relieved from their duties. The writ petition has been disposed of by the impugned order, whereby the petitioners have been directed to be reinstated on daily wage basis within a period of two weeks from the date of receipt of a copy of the order and pay them the wages accordingly from the date of issuance of the order. It is further stated in the order that it did not confer on the petitioners the status of regular employees and their services as daily-wage will be liable to be terminated for good reasons and in accordance with law.
3. While assailing the Validity of the impugned order, learned counsel for the petitioners submits that an order which had attained finality cannot be set aside or modified in a collateral proceeding. He submitted that it is also barred by principles of constructive Res Judicata. He relies on the following reported judgments:
(i) A.I.R. 1961 S.C. 1457, paragraphs 9 to 11 and 15 (Daryao and others Vs. State of U.P. and others);
(ii) A.I.R. 1962 S.C. 1621, paragraph 180 and 181 (Smt. Ujjam Bai Vs. State of Uttar Pradesh and another).
(iii) A.I.R. 1962, Patna, 72 (Baijnath
