M/S Mitra S.P. (P) Ltd. vs Dhiren Kumar

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)

JUDGMENT

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. Signature Not Verified The respondent – workman was appointed as a Junior Digitally signed by R Natarajan Date: 2022.08.04

Supervisor with the company’s branch at Visakhapatnam. 16:30:14 IST Reason: 1 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

2 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

3 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

4 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

5 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.

6 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

7 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

8 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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