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2014 Supreme(Pat) 432
IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, J.
Ram Nandan Prasad - Petitioner
Versus
The State Of Bihar, Through the Secretary, Urban Development Department, Government Of Bihar, Patna & Ors.- Respondents
Civil Writ Jurisdiction Case No.24959 of 2013
Decided on: 29-04-2014
Advocate Appeared
For the Petitioner:Mr. Shankar Kumar Thakur, advocate Mr. Baidya Nath Thakur, advocate
For the Respondents:Mr. Ranjeet Kr. Pandey, advocate Mr.Vikas Ratan Bharti AC to GP 30
The withdrawal of a writ application without seeking liberty to file a subsequent petition would bar the petitioner from pursuing the remedy before another forum.
Headnote:
Industrial Disputes Act - Retirement Dispute - Section 10(2A) - 2/2010 - The court discussed the implementation of an award regarding the retirement date of the petitioner, which was found to be unjustified. The court ordered the petitioner to be treated as if he did not retire on the specified date and to be paid full back wages.
Fact of the Case:
The petitioner sought implementation of an award regarding his retirement date, which was found to be unjustified. The respondents denied the claim and raised a plea of res judicata due to a previous writ application filed by the petitioner.
Finding of the Court:
The court found that the withdrawal of the previous writ application without liberty to move to another forum barred the petitioner from pursuing the remedy before the Industrial Tribunal. The court also found that the ex parte award obtained by the petitioner was collusive and fraudulent.
Issues: The issues considered by the court included whether non-disclosure of the withdrawal of the previous writ application amounted to suppression of material facts, the effect of the withdrawal without liberty to move to another forum, and whether the award obtained by the petitioner was fraudulent.
Ratio Decidendi: The withdrawal of a writ application without seeking liberty to file a subsequent petition would bar the petitioner from pursuing the remedy before another forum. The court also held that the ex parte award obtained by the petitioner was collusive and fraudulent.
Final Decision: The court dismissed the writ application without costs, finding no merit in the petitioner's claim.
This writ application has been filed seeking implementation of an award dated 05.08.2011 passed in Reference case No. 2/2010 by the Industrial Tribunal, Patna on reference made by the State Government in respect of certain dispute over actual date of retirement of the petitioner.
2. The petitioner claims to have been appointed on the post of Mali in Patna Municipal Corporation on 09.02.1984. He is said to have submitted a school leaving certificate indicating his date of birth as 24.11.1957. However, it is the petitioner’s case that all of a sudden, memo No. 1631dated 18.12.2007 was issued by the Chief Executive Officer of Patna Municipal Corporation and he was being made to retire w.e.f. 30.11.2007, treating his date of birth to be 24.11.1947.
3. The petitioner, thereafter, filed a writ application before this court vide CWJC No. 4769/2008, which was permitted to be withdrawn by an order dated 05.09.2008. It is indicated at the very beginning that there is no pleading in the present writ application that the petitioner had earlier approached this court by filing CWJC No. 4769/2008, which was withdrawn by the said order dated 05.09.2008. In the said writ application, the petitioner had raised the same grievance regarding wrong entry of his date of birth and action of the respondents asking him to retire w.e.f. 30.11.2007. It appears that petitioner had approached the authorities under the Industrial Disputes Act and a conciliation proceeding was also conducted in the court of Deputy Labour Commissioner, Patna. From the letter dated 14.09.2009 issued by the Deputy Labour Commissioner-cum- Conciliation Officer, Patna, addressed to the Principal Secretary, Labour Department, Government of Bihar it appears that the Patna Municipal Corporation was represented in the conciliation proceeding and a plea was taken that the petitioner had approached this court for the same purpose. Conciliation proceeding was, therefore, kept in abeyance for some time awaiting decision of this court. As has been indicated above, the writ application was permitted to be withdrawn and dismissed accordingly vide order dated 05.09.2008. From the said order dated 14.09.2009, it will appear that the petitioner informed the Conciliation officer that he withdrew the writ application at the behest of Patna Municipal Corporation. Subsequently, by a notification dated 15.02.2010 issued by the Labour Resources Department, Government of Bihar, a reference was made under section 10(2A) of the Industrial Disputes Act to Industrial Tribunal, Patna referring the following dispute:-
“Whether Retirement from 30.11.2007 of Shri Ramnandan Prasad, Mali by Letter No.- 1631 Dated-18-12-2007 of Patna Nagar Nigam Patna is justified?
If not, what relief workman is entitled to?”
4. Finally the award in reference case No. 2/2010 came to be passed on 05.08.2011 which reads as follows:-
“Thus there is evidence that date of birth of the workman Ramnandan Prasad is 24.11.1957 and he has been wrongly retired w.e.f. 30.11.2007 treating 24.11.1947 as his date of birth. In the result it is adjudicated that the retirement of Shri Ramnandan Prasad, workman w.e.f. 30.11.2007 vide letter No. 1631 dated 18.12.2007 of Patna Nagar Nigam is not justified. He will be treated in continuous service of Patna Nagar Nigam as if he did not retire on 30.11.2007 and will be paid full back wages. Patna Nagar Nigam is directed to take back him in service and make full payment of back wages within 30 days pronouncement of the award.
And this is my Award.”
5. The petitioner has now approached this court with a grievance that the award of the Industrial Tribunal, Patna by which the date of birth of the petitioner has been found to be 24.11.1957 is not being implemented by the Patna Municipal Corporation. By the said award, the retirement of the petitioner w.e.f. 30.11.2007 has been held to be unjustified and the Tribunal in its award has ordered to treat the petitioner in continuous service of the Patna M
