Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 48634866 OF 2022
M/s Mitra S.P. (P) Ltd. & Anr. …Appellant(s)
Versus
Dhiren Kumar …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the High Court in
Writ Appeal Nos. 615/2021 and 617/2017 in respective
Writ Petition Nos. 2955/2021 and 5271/2009, the
Management has preferred the present appeals.
2. The respondent – workman was appointed as a Junior
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.08.04
16:30:14 IST
Reason:
Supervisor with the company’s branch at Visakhapatnam.
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While he was working at Visakhapatnam, he was
transferred to Jharsuguda in State of Orissa vide order
dated 20.07.1997. The workman instead of joining at the
place of transfer submitted a representation to the Director
requesting for transfer to Mangalore in Karnataka State.
The same was not acceded to. Challenging the said order of
transfer, the workman filed O.S. No. 1602/1997. The Civil
Court did not grant any relief as prayed by the workman.
Thereafter, the workman was relieved by the branch office
at Visakhapatnam on 14.08.1997. Though the said
relieving order was received by the workman, he neither
handed over the charge at Visakhapatnam nor did he
report for duty at Jharsuguda office. Therefore, the
management treated him as deemed to have been relieved
w.e.f. 14.08.1997 from Visakhapatnam office. Thereafter,
the management issued a show cause notice dated
24.10.1997 to comply with the directions of transfer or else
disciplinary action would be initiated against the workman.
Thereafter, the workman was placed under suspension.
Domestic enquiry was ordered. The enquiry proceeded ex
parte. Subsequently, the management dismissed the
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workman from service w.e.f. 15.09.1998. Aggrieved by the
dismissal order, the workman filed I.D. No. 219/1998
before the Labour Court. The Labour Court vide judgment
and award dated 23.10.2000 modified the order of
dismissal with stoppage of one increment with cumulative
effect and ordered for reinstatement of the workman into
service, with a direction to the workman to join at the place
of his transfer i.e., at Jharsuguda within a period of one
month from the date of receipt of the order, failing which,
he shall not be entitled to the reinstatement. The Labour
Court also further directed that the management shall
consider the request of the workman for retransfer to
Visakhapatnam or Mangalore after the workman joins at
his new station and that if the workman fails to report for
duty at Jharsuguda within one month he shall not be
entitled to back wages or continuity of service. The
management filed W.P. No. 2955/2001 before the learned
Single Judge of the High Court. On 22.02.2001 while
admitting the writ petition, the learned Single Judge
granted interim suspension of the order of the Labour
Court. Subsequently, learned Single Judge modified the
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said interim order granting interim stay subject to the
condition of the management complying with Section 17B
of the Industrial Disputes Act.
2.1 It is the case on behalf of the workman that thereafter he
reported at Jharsuguda but he was not permitted to join on
the ground that no instructions were received from the head
office. Therefore, the workman filed an application under
Section 33(C)(2) of the Industrial Disputes Act, 1947 (for
short “ID Act”) before the Labour Court for recovery of wages
from 01.01.1998 to 30.04.2005. The said application under
Section 33(C)(2) of the ID Act came to be dismissed by the
Labour Court on the ground that the workman did not go to
Jharsuguda to join duty. Aggrieved by the same, the
workman filed W.P. No. 5271/2009. Both the writ petitions,
one, filed by the management against the judgment and
award passed by the Labour Court and another, filed by the
workman challenging the order passed by the Labour Court
dismissing the application under Section 33(C)(2) were
heard together. Before the learned Single Judge for the first
time the management raised the issue with respect to
territorial jurisdiction of the Labour Court. The learned
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Single Judge dismissed the writ petition preferred by the
management by observing that the management shall not
be permitted to raise the issue with respect to territorial
jurisdiction for the first time before the High Court. At the
same time, without any further discussion on merits on the
order passed by the Labour Court rejecting the application
under Section 33(C)(2) of the ID Act, the learned Single
Judge allowed Writ Petition No. 5271/2009 preferred by the
workman and set aside the order of the Labour Court
rejecting the application under Section 33(C)(2) of the ID Act
– M.P. No. 43/2005 dated 16.12.2008. The learned Single
Judge observed and held that the workman is entitled for all
the benefits in pursuance of the order of the Tribunal in I.D.
No. 219 of 1998 with all consequential benefits.
2.2 Feeling aggrieved and dissatisfied with the common
judgment and order passed by the learned Single Judge of
the High Court in Writ Petition Nos. 2955/2001 and
5271/2009, the management preferred writ appeals before
the Division Bench of the High Court. By the common
impugned judgment and order, the Division Bench of the
High Court has dismissed the appeals as not maintainable
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by observing and holding that the writ petitions were under
Article 227 of the Constitution of India and therefore, the
writ appeals before the Division Bench of the High Court
would not be maintainable. Hence, the present appeals.
3. We have heard Mr. Siddhartha Dave, learned Senior
Advocate, appearing on behalf of the appellant(s) and Mr. K.
Parameshwar, learned Advocate, appearing on behalf of the
respondent.
4. From the judgment and order passed by the learned Single
Judge, it appears that what was challenged before the
learned Single Judge was the order passed by the Labour
Court rejecting the application under Section 33(C)(2) of the
Industrial Disputes Act, 1947 preferred by the workman as
well as the original award passed by the Labour Court.
Learned Single Judge passed the common judgment and
order dismissing the writ petition preferred by the
Management in which the Management challenged the
original judgment and award passed by the Labour Court
and allowed the writ petition preferred by the workman
rejecting his Section 33(C)(2) application.
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4.1 So far as challenge to the award passed by the Labour Court
by the Management is concerned, from the judgment and
order passed by the learned Single Judge, it appears that
there was only one submission made with respect to
territorial jurisdiction and the learned Single Judge
negatived the same. Therefore, so far as the order passed
by the learned Single Judge dismissing the writ petition
preferred by the Management against the original judgment
and award by the Labour Court is concerned, the same does
not warrant any interference.
4.2 However, at the same time, while allowing the writ petition
preferred by the workman challenging the dismissal of
application under Section 33(C)(2), from the order passed by
the learned Single Judge it appears that there is no
discussion at all on the order passed by the Labour Court
rejecting the 33(C)(2) application and without any
discussion and/or recording any specific findings on the
merits of the order passed by the Labour Court rejecting the
33(C)(2) application, the writ petition preferred by the
workman has been allowed. The learned Single Judge
ought to have considered the writ petition preferred by the
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workman on merits and ought to have given some findings
on the order passed by the Labour Court rejecting the 33(C)
(2) application.
5. Under the circumstances, the impugned judgment and
order passed by the learned Single insofar as allowing the
Writ Petition No. 5271/2009 preferred by the workman is
concerned, the same is hereby quashed and set aside. The
matter is remitted back to the learned Single Judge to
decide Writ Petition No. 5271/2009 afresh in accordance
with law and on its own merits and within a period of six
months from today. Civil Appeals arising out of the
judgment and order passed by the High Court in Writ
Petition No. 5271/2009 are accordingly allowed. Civil
Appeals arising out of Writ Petition No. 2955/2001 stand
dismissed. No costs.
The Registry is directed to communicate this order to
the Registry of the High Court forthwith. All concerned are
directed to cooperate the learned Single Judge in early
disposal of the writ petition and within the time stipulated
hereinabove. If the High Court is of the opinion that any of
the parties is not cooperating, it will be open for the High
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Court to proceed further with the hearing of the writ petition
exparte by recording reasons.
The present appeals stand disposed of accordingly. No
costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
AUGUST 04, 2022. [B.V. NAGARATHNA]
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