LPA/198/2015 on 31 December 2016

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.

LPA Nos. 198 and 199 of 2015.

Reserved on: 21.12.2015.

Decided on: 31.12.2015.

LPA No. 198 of 2015. Himachal Pradesh University

…Appellant.

Versus

Bardu Ram and another

...Respondents.

LPA No. 199 of 2015. Himachal Pradesh University

…Appellant.

Versus

Babu Ram and another

...Respondents.

Coram:

The Hon’ble Mr.Justice Mansoor Ahmad Mir, Chief Justice. The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting?1 Yes _______________________________________________________ For the Appellant: Mr. Shrawan Dogra, Sr. Advocate

with Mr. J.L.Bhardwaj, Advocate, in

both the appeals.

1 Whether the reporters of the local papers may be allowed to see the judgment?

For the respondents: Mr. K.D.Shreedhar, Sr. Advocate, with Mr. Ramakant Sharma & Bhuvnesh Sharma, Advocates, for respondent in LPA No.198 of 2015

Mr. Ramakant Sharma, Advocate, for respondent in LPA No. 199 of 2015.

Per Sureshwar Thakur, Judge

Since both the Letters Patent Appeals pertain to a common subject matter hence are being disposed of by a common judgement. The controversy engaging the parties at lis before this Court has its advent in O.A. No. 957 of 1998 instituted before the learned H.P. State Administrative Tribunal (hereinafter referred to as ‘the Tribunal’) wherein respondent No.1 in both the LPAs stood respectively arrayed as applicants No. 10 and 27 (hereinafter in short referred to as the respondents). In the aforesaid O.A. the respondents had pressed for purveying in their favour the hereinafter extracted reliefs:-

“(i) That the respondent-University may very kindly be directed to grant regular pay scale of Rs.2520-4140 as has been given to the respondent No.3.

(ii) That the applicants may also be ordered to place on adhoc basis alike the respondent No.3 and they may further be considered for regularsiation.”

The appellant had contested the claim of the respondents for the affording in their favour the hereinabove extracted reliefs which stood squarely anvilled on parity viz.a.viz Ram Singh arrayed therein as respondent No.3 since deleted vide orders of this Court of 21.12.2015, substratum of contest whereof stood embedded in the factum of Ram Singh standing freshly recruited on an adhoc basis against the post of Peon rendering him to be constituting a person distinct from the respondents who rather stood promoted as Mess Helpers. Given the distinctivity vis-à-vis the fresh appointment of Ram Singh on an adhoc basis

against a post of peon with the respondents standing promoted as Mess Helpers stood canvassed in the reply furnished thereto by the appellant herein to be disentitling the respondents to claim parity with Ram Singh besides obviously disentitling them to press for the appellant being directed to afford in their favour the reliefs as embedded therein.

2. The learned “Tribunal” vide order of 31.7.2006, which stands reproduced hereinafter:- “Respondent No.3 has been served but not present in the Court. Hence he is proceeded against ex-parte. The learned counsel for the respondents states that applicants No. 1 to 5, 8 to 24 have since been regularized and cases of remaining applicants i.e. applicant No. 6, 7, 25 to 34 is under process and they will be regularized as and when the vacancy occurs in their respective category.

In view of the above the Original Application has become infructuous and stands disposed of accordingly.”

while accepting the statement made before it by the counsel for the appellant qua the services of applicants No. 1 to 5, 8 to 24 standing regularized and of the regularization in service of applicants 6,7, 25 to 34 being processed besides their services being amenable to regularization as and when a vacancy occurs in their respective category, accordingly disposed of the original application. Pertinently, with the name of Babu Ram occurring at Sr. No. 10 in the array of applicants in O.A. No. 957 of 1998 he hence stood covered by the statement made by the learned counsel for the appellant herein before the “Tribunal” qua his services standing regularized. Even with the name of Bardu Ram standing displayed at Sr. No. 27 in the array of applicants in the aforesaid O.A. he too also stood covered by the statement made before the “Tribunal” by the learned counsel for the appellant qua his case for regularization in service being processed and his services being amenable to regularization as and when

a vacancy in his category occurs. Bardu Ram instituted Civil Writ Petition No. 2669 of 2010 claiming therein the hereinafter extracted reliefs: “1. The respondent may very kindly be directed to regularize the services of the petitioner as Mali/Class-IV w.e.f. the date of regularization of the services of the respondent No.2 with all consequential benefits.”

Babu Ram also instituted before this Court Civil Writ Petition No. 878 of 2010 claiming therein the hereinafter extracted reliefs: “1. That the respondent No.1 may very kindly be directed to regularize the services of the petitioner w.e.f. the date of regularization of the services of respondent No.2 junior to the petitioner as daily wages Mess Helper with all consequential benefits.”

3. Even when both the petitioners aforesaid respectively instituted the aforesaid writ petitions before this Court they suppressed and withheld the prima donna factum of theirs having previously

instituted OA No. 957 of 1998 before the “Tribunal” claiming therein reliefs analogous to the one as stand ventilated in the writ petitions aforesaid instituted respectively by them before this Court. However, the effect thereof would stand adverted to hereinafter.

4. The learned Single Judge of this Court allowed the writ petitions respectively instituted by the respondents with a relief standing afforded therein to the petitioners/respondents qua theirs being deemed to have been regularized w.e.f. 8.6.1999 instead of 12.4.2006 with all ensuing consequential benefits. Uncontrovertedly, the lis comprised in O.A. No. 957 of 1998 wherein the respondents stood respectively arrayed as applicants No. 10 and 27, was a lis inter partes same, similar besides analogous contestants viz.a.viz contestants in CWP No. 878 & 2669 of 2010 instituted respectively before this Court by Babu Ram and Bardu Ram. Moreover the reliefs canvassed therein by the respondents as stand respectively

reproduced hereinabove palpably on their perusal unearth the imminent fact of theirs being analogous besides being similar moreso upsurge the prime factum of theirs standing congruously anchored upon parity of treatment with one Ram Singh. This Court has reproduced hereinabove the orders rendered thereon by the “Tribunal” connotative of the services of Babu Ram standing regularized besides reflective of the services of Bardu Ram being processed for his regularization thereon which process would consummate on occurrence of a vacancy in the apposite category. The order of the “Tribunal” with portrayals therein stood unagitated at the instance of the respondents by theirs resorting to institute a Civil Writ Petition therefrom before this Court. The omission aforesaid of the respondents gives leeway to an inference of the legal embargo of waiver besides of estoppel standing hence germinated for forestalling them to through their respective civil writ petitions

instituted before this Court canvass therein reliefs analogous to the one which stood canvassed by them in O.A. No. 957 of 1998 instituted by them as applicants No. 10 and 27 before the “Tribunal” and which reliefs stood purveyed in their respective favour in the manner as enshrined in the order of the “Tribunal” reproduced hereinabove. This Court would not eschew words to thereupon conclude of hence conclusivity standing fastened to the orders of the “Tribunal” recorded on 31.7.2006. Accentuated conclusivity standing fastened thereto wherefrom the principle of resjudicata stands engendered or stands awakened is borne by the factum of the previous lis wherein the respondents stood arrayed as applicants No. 10 and 27 respectively was inter partes same, similar or analogous contestants as are herein besides with commonality and analogity of reliefs ventilated therein with the ones pressed for redressal in civil writ petitions aforesaid instituted by the respondents,

concomitantly snatched right if any subsisting or inhering in the respondents to respectively institute civil writ petitions before this Court embodying therein a claim for an analogous relief from a similar contestant to the one therein. It is vividly evident on a reading of the averments constituted by the respondents in their respective writ petitions of theirs standing harboured upon same and similar subject matter vis.a.vis the one propagated in O.A.957 of 1998 whereto the rigour of the bar of estoppel against their institution by them before this Court was attractable in its fullest might yet they took to escape its invocation by suppressing therein the factum of theirs having previously instituted O.A embodying therein reliefs analogous to the one as constituted in the succeeding civil writ petitions. In sequel, with the respondents having committed legal misdemeanors of suppressio veri which suppression or withholding herein stood projected by the appellant herein in its reply furnished

to the writ petition instituted by the respondents before this Court, was a sufficient dissuasive factor for the learned Single Judge to refuse relief to the respondents. However, the learned Single Judge of this Court proceeding to despite its hence surging forth with a marked vigour, having afforded reliefs to the respondents has untenably exercised equity in favour of the respondents despite the respondents for reasons aforesatated having not come to the writ Court with clean hands which otherwise beset them with a legal deterrent to stake any claim for relief from a writ Court which also exercises jurisdiction of equity. Moreover for the reasons aforestated with the might of the rigour of resjudicata besides of estoppel and of waiver arousable from the previous lis inter partes common contestants therein with ones herein besides all reliefs canvassed therein being squarely akin to the one as claimed from the writ Court hence rendered the order of the “Tribunal” recorded on 31.07.2006 to

attain conclusivity. Obviously, the learned Single Judge also erred in undermining its attraction to the writ petition respectively instituted by the respondents whereupon relief was refusable to the respondents. In aftermath, the overlooking by the learned Single Judge of this Court of the aforesaid prime principle of law has led him to proceed to afford relief in favour of the respondents even when for the reasons aforestated it was not affordable in their favour.

5. Furthermore the reliefs, if any, as canvassed before the Tribunal standing not afforded in favour of the respondents are to be construable to have been denied to them with a concomitant effect of the writ court standing barred when it/they stood not afforded to them by the “Tribunal” to afford it/them in their favour. In coming to the conclusion of the writ Court standing barred to grant any reliefs to the respondents given theirs standing not granted to them by the “Tribunal” as apparent on a reading of its order as stands reproduced herein hence

construable to be deemed to have been declined to them, this Court draws strength from a judgement of the Apex Court in State Bank of India vrs. Ram Chandra Dubey and others, reported in (2001) 1 SCC 73, wherein at paragraph 8, it has held as under: “ The principles enunciated in the decisions referred by either side can be summed up as follows: Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre- existing right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit

has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of

reinstatement itself conferred right for claim of back wages.”

6. The learned counsel for the respondents has canvassed with much force before this Court qua given under pain of contempt the implementation by the appellant herein of the orders of the learned Single Judge rendered in Civil Writ Petitions aforesaid estops this Court to adjudicate on the merits of instant LPAs arising therefrom. However, the aforesaid contention as reared before this Court by the learned counsel for the respondents is bereft of any legal vigour especially in the wake of a judgment titled as Union of India and others Vs. Ram Kumar Thakur 2008 AIR SCW 7638 wherein with their lordships having conclusively held of implementation under pain of contempt by the employer the orders made by the learned Single Judge not operating as a bar for the Division Bench seized of an LPA arising therefrom to

proceed to decide it on merits especially when as in the extant case the orders of the learned Single Judge stand implemented by the appellant herein under pain of contempt. Consequently, even if the orders of the learned Single Judge as assailed by the appellant by its instituting an LPA therefrom though stand on pain of contempt implemented by it, this Court would not stand precluded to decide on merits the lis engaging the parties at contest before this Court. The outcome of the aforesaid discussion is that the present LPAs are allowed, the impugned judgements are set-aside and the writ petitions are dismissed.

(Mansoor Ahmad Mir)

Chief Justice

December 31, 2015.

(Sureshwar Thakur) (TM)

Judge.