# Regional Manager & Anr v. Prabhu Dayal & Anr

- **Citation:** (2021) 11 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-28
- **Case number:** Writ C No. 22299 of 2021
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/regional-manager-anr-v-prabhu-dayal-anr-46552
- **Pages:** 13

## Headnote

A. Labour Law - Termination order passed after
domestic
inquiry,
upheld
in
Appeal
and
Revision - Industrial dispute raised after
reference to the Labour court - Doctrine of res
judicata - Application - Maintainability of
11 All. Regional Manager & Anr. Vs. Prabhu Dayal & Anr.
361
industrial dispute challenged - Held, domestic
enquiry and Labour Court are not in one line of
forum. Therefore, doctrine of merger would not
come into play - In case, order passed in
domestic enquiry was challenged before High
Court prior to reference, then issue of res
judicata would also be very important - In the
present case Respondent no. 1 has not
challenged his termination order or the orders
passed in appeal and revision before the High
Court. Therefore, the judgment in Mahmood
Khan's case would not be applicable in the
present case - Reference is not hit by 'res
judicata'. (Para 23 and 28)
B. Doctrine of Merger - Doctrine of relation
back - Termination order passed, which was
upheld in Appeal and Revision - Relevant date
of termination, since when it to be counted -
Held, according to 'theory of merger' order of
termination and order passed by appellate
authority got merged into order passed in
revision, which upheld the order of termination
- However, the respondent no. 1 would be
considered to be terminated from service with
effect
from
16.02.2013
only,
therefore
according to doctrine of 'relation back' the
relevant
date
would
be
16.02.2013
for
termination and not the date when appeal and
revision were dismissed. (Para 22)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,998 of 48,199. This is a partial read: ask again with offset=39998 for what follows._

360 INDIAN LAW REPORTS ALLAHABAD SERIES
ascertain whether the bidder had the capability
to successfully undertake and complete the work
under the contract in terms of its quality. It is for
the said reason that previous experience should
be in relation to 'completed work'. Second aspect
is to make qualitative assessment - whether the
bidder had experience of undertaking work of
such magnitude. That is why there is stipulation
regarding the monetary value of previous work.
The fact that the work in respect of which
experience
certificate
was
furnished
was
terminated for poor performance, was thus an
important factor, while adjudging the capability
from the qualitative point of view. The technical
committee thus cannot be faulted for declaring
the petitioner disqualified as soon as the fact
relating to cancellation of previous contract
came to its knowledge. At the same time, it
cannot be said that the petitioner was guilty of
furnishing
any
wrong
information,
as
concededly the extent of work done with the
Delhi Jal Board, is not in dispute. We thus do
not find any illegality in the decision of the
second and fourth respondents in declaring the
petitioner as disqualified to participate in the
tender process. The apprehension expressed by
learned Senior Counsel appearing for the
petitioner that stipulation in the impugned order
that the petitioner will not be permitted to
participate in future amounts to black listing the
petitioner, is unfounded. Sri Kaushalendra Nath
Singh, learned counsel for second respondent,
on instructions, has clarified that the said
stipulation would not preclude the petitioner
from participating in other tenders that may be
floated by the second respondent in future.
However, in respect of present work, as held
above, the petitioner did not possess requisite
experience, therefore is not qualified to
participate
in
the
same.
As
the
same
qualification applies to fresh tender notice dated
13.9.2021, the challenge to it, also fails.

11. In the end, we would like to record the
statement of Sri Kaushalendra Nath Singh,
learned counsel appearing on behalf of the
second
and
fourth
respondents
that
the
interpretation made by us above, will be
uniformly applied to all the bidders and in case
none qualifies as per the said interpretation, they
will not proceed any further in pursuance of the
fresh tender notice. However, as prayed by Sri
Kaushalendra Nath Singh, liberty is reserved in
favour of the second respondent to relax
stipulation relating to previous work experience
in future, if they still do not get a bidder who
meets the above requirements. In such an event,
the petitioner shall also be entitled to participate
in the tender process and its bid will be
evaluated as per new norms without being
influenced by the impugned order, or any
observation made in the instant order.

12. The writ petition stands disposed of
accordingly.
----------
(2021)11ILR A360
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2021

BEFORE

THE HON'BLE SAURABH SHYAM SHAMSHERY, J.

Writ C No. 22299 of 2021

Regional Manager & Anr. ...Petitioners
Versus
Prabhu Dayal & Anr. ...Respondents

Counsel for the Petitioners:
Sri Awadhesh Kumar Saxena, Sri Avijit Saxena

Counsel for the Respondents:
C.S.C., Sri Aditya Vardhan Singh, Sri Samir
Sharma

A. Labour Law - Termination order passed after
domestic
inquiry,
upheld
in
Appeal
and
Revision - Industrial dispute raised after
reference to the Labour court - Doctrine of res
judicata - Application - Maintainability of
11 All. Regional Manager & Anr. Vs. Prabhu Dayal & Anr.
361
industrial dispute challenged - Held, domestic
enquiry and Labour Court are not in one line of
forum. Therefore, doctrine of merger would not
come into play - In case, order passed in
domestic enquiry was challenged before High
Court prior to reference, then issue of res
judicata would also be very important - In the
present case Respondent no. 1 has not
challenged his termination order or the orders
passed in appeal and revision before the High
Court. Therefore, the judgment in Mahmood
Khan's case would not be applicable in the
present case - Reference is not hit by 'res
judicata'. (Para 23 and 28)
B. Doctrine of Merger - Doctrine of relation
back - Termination order passed, which was
upheld in Appeal and Revision - Relevant date
of termination, since when it to be counted -
Held, according to 'theory of merger' order of
termination and order passed by appellate
authority got merged into order passed in
revision, which upheld the order of termination
- However, the respondent no. 1 would be
considered to be terminated from service with
effect
from
16.02.2013
only,
therefore
according to doctrine of 'relation back' the
relevant
date
would
be
16.02.2013
for
termination and not the date when appeal and
revision were dismissed. (Para 22)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Gojer Bros. Pvt. Ltd. Vs Ratan Lal Singh (1974) 2
SCC 453
2. Collector Customs, Calcutta Vs East India
Commercial Co.; AIR 1963 SC 1124
3. S.S.Rathore Vs St. of M.P.; (1989) 4 SCC 582
4. Pondicherry Khadi & Village Industries Vs P
Kulothangan & anr.; (2004) 1 SCC 68
5. District Administrative Committee & anr. Vs
Presiding Officer, Labour Court, Bareilly; 2008 (4) ADJ
658
6. U.P. State Road Transport Corporation, Kanpur Vs
Mahmood Khan & anr.; 2007 (4) ADJ 345
7. Secretary, Indian Tea Association Vs Ajit Kumar
Barat & ors; (2000) 3 SCC 93
8.
Hochtief
Gammon
Vs
Industrial
Tribunal,
Bhubaneshwar; AIR 1964 SC 1746
9. U.O.I. & ors. Vs Dinesh Prasad; 2012 (12) SCC 63
10. R.Thiruvirkolam Vs Presiding Officer & anr.; 1997
(1) SCC 9
11.L.I.C. of India & ors. Vs Central Industrial Tribunal,
Jaipur & ors.; 1997 (1) SCC 59
12. Syndicate Bank Ltd.Vs Workmen, 1966 (2) LLJ
194 (SC)
13. Delhi Cloth & General Mills Co. Ltd. Vs Workmen
& ors.; AIR 1967 SC 469
14. Western India Match Company Ltd. Vs Workmen;
1974 (3) SCC 330
15. Executive Engineer, Electricity Store Division,
Gorakhpur & anr. Vs Presiding Officer, Labour Court,
Gorakhpur & ors.; 1997 (1) UPLBEC 322 (Alld)
16. J.K. Synthetics Vs Rajasthan Trade Union Kendra
& ors.; 2001 (2) SCC 87
17. Managing Director, A.P. State Road Transport
Corporation Vs Presiding Officer, Industrial Tribunal,
Ramkote, Hyderabad & ors.; 2001 (2) SCC 695
18. Workmen of M/S Firestone Tyre & Rubber Co. of
India (P) Ltd. Vs Management & ors.; 1973 (1) SCC 813
19. Bharat Singh & Others Vs St. of Har. & ors.;
(1988) 4 SCC 534
20. Kunhayammed & ors. Vs St.of Kerala & anr.;
(2000) 6 SCC 359
21. St. of Uttrakhand Vs Sureshwati; 2021 (3) SCC 108
22. Workmen Vs Firestone Tyre & Rubber Co. of India
(P); (1973) 1 SCC 813

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Respondent no.1 was appointed as Bus
Conductor in Buduan Depot of the petitionerUttar Pradesh State Road Transport Corporation
(hereinafter referred to as the "UPSRTC") in the
year 1997 and was confirmed on 05.09.1998.

2. On 09.04.2008, the bus No.U.P.25-Q
9475, plying between Budaun to Farrukhabad in
362 INDIAN LAW REPORTS ALLAHABAD SERIES
which respondent no. 1 was Conductor, was
checked by a team of three members while
going and coming back. During checking 3 and
13 passengers were found travelling without
ticket, respectively.

3. A charge-sheet dated 13.05.2008 was
served upon respondent no.1 on 13.05.2008.
Shri Z.A. Nomani was appointed as Enquiry
Officer, who after conducting enquiry submitted
his report dated 23.12.2008. Relevant part of the
enquiry report is mentioned hereinafter.

"अर् हस्ताक्षरी द्वारा प्रकरण पत्रािली में
उपलब्ध समस्त अवभलेि ों का अध्ययन करने पर
पाया वक आर पी द्वारा वर्नाोंक 09-04-08 क बर्ायूूँ-
फरुिाबार् मागद पर िाहन सोंख्या यू0पी025क्ू-9475
का उसािाूँ में वनरीक्षण करने पर 34 यात्री में 03 यात्री
बर्ायूूँ से कलान के वबना वटकट पकडे गये वजनकी
र्नरावि आर पी द्वारा पूिद में िसूल की जा चुकी थी
तथा उसी वर्िस फरुिाबार् से िापस बर्ायूूँ आते
समय नौगिाों नामक स्थान पर िाहन का वनरीक्षण
करने पर 47 यात्री में 13 यात्री वबना वटकट पकडे गये,
वजसमें कुछ यावत्रय ों के पैसे आर पी द्वारा िसूल वकये
जा चुके थे तथा िेष के ररप टदकताद द्वारा िसूल कर
वमजादपुर से कलान के वटकट वनगदत वकये गये। जबवक
नौगिाों से कलान की र्ूरी मात्र 02 वक0मी0 थी। इस
प्रकार आने ि जाने में वबना वटकट िाहन वलिा जाना
तथा आर पी द्वारा साक्षात्कार के समय में क ई गिाह
आवर् प्रस्तुत न करना, तथा आर पी द्वारा ररप टदकताद
से साक्षात्कार के समय में पूछा जाना वक िाहन िडी
थी या चल रही थी। ररप टदकताद द्वारा उत्तर वर्या िाहन
क वनरीक्षण हेतु सोंकेत र्ेकर रुकिाया गया, िाहन
गवतिील क्तस्थवत में थी। आर पी द्वारा अपने बचाि में
क ई ऐसा सबूत ि गिाह आवर् प्रस्तुत नहीों वकया ज
उसके ऊपर लगे गम्भीर आर प ों क कम कर सके।

अतः श्री प्रभु र्याल पररचालक, बर्ायूूँ
वडप के विरुद्ध आर प पत्र सोंख्या 1002 वर्नाोंक 1305-08 में लगे आर प वसद्ध पाये गये।"

4. A show cause notice dated 07.01.2012,
along with a copy of enquiry report was served
upon the petitioner, who submitted his reply on
06.02.2013. The Assistant Regional Manager
passed order dated 16.02.2013 wherein he found
charges against the Respondent No. 1 to be
proved and awarded punishment of removal
from service and forfeiting arrears of salary of
gratuity etc. for the period the respondent No.1
was under suspension.

5. The appeal and revision filed by the
respondent no.1 was rejected by orders dated
25.06.2013
and
05.12.2014
by
Regional
Manager and Managing Director, UPSRTC,
respectively.

6. The petitioner raised an industrial
dispute before the Labour Court and a reference
No.10534-37 CP 23/15 dated 07.10.2016 was
referred, which was registered as Industrial
Dispute No.15/2016 that:

"क्ा श्रवमक श्री प्रभूर्याल पुत्र स्व0 श्री
मोंगूलाल पर्नाम पररचालक की सेिायें वर्नाोंक 16-213 से समाप्त करना उवचत तथा/अथिा िैर्ावनक है,
यवर्
नहीों
त
सोंबोंवर्त
श्रवमक
वकस
वहतलाभ/अनुत ष/क्षवतपूवतद पाने का अवर्कारी है तथा
अन्य वकस वििरण सवहत है।"

7.

The
Presiding
Officer
after
considering the written statements and oral
statements decided the preliminary issue by
order dated 17.02.2021 and held that domestic
enquiry was not conducted according to due
procedure and thus cannot be considered to be
valid and legal, and permitted UPSRTC to
submit evidence in support of the charge. The
said order was not challenged by the UPSRTC
and participated in further proceedings. The
relevant part of the said order is mentioned
hereinafter:
11 All. Regional Manager & Anr. Vs. Prabhu Dayal & Anr.
363

"जाोंच कायदिाही में वकसी ररप टदकताद ने न
त उन तथाकवथत वबना वटकट यावत्रय ों क गिाही हेतु
प्रस्तुत वकया और न ही उनके बयान वलये न ही उन
वबना वटकट यावत्रय ों के नाम ि पते प्रस्तुत वकये और न
ही उनके द्वारा मागदपत्र पर अपनी ररप टद में उन
तथाकवथत वबना वटकट यावत्रय ों द्वारा बयान ि नाम पते
न र्ेने का कारण ही स्पष्ट वकया है। इस प्रकार
पररिहन वनगम मुख्यालय लिनऊ द्वारा जारी पररपत्र ों
446 एलएएस./95 वर्नाोंक 12-3-1996, सों0-71 से
से0वट0स्ट् / टी0सी0/ वमस 85 वर्नाोंक 6-2-88, में वर्ये
गये वर्िा वनर्ेि ों का पालन नहीों वकया गया है।

जाोंच ररप टद के अिल कन से यह तथ् स्पष्ट
नहीों ह रहा है वक जाोंच अवर्कारी ने िी0के0पाण्डे के
बयान लेने के पश्चात सोंबोंवर्त श्रवमक क उनसे
प्रवतपरीक्षण का अिसर क् ों नहीों वर्या एिों मुख्य
ररप टदकताद श्री मन हर लाल सहायक यातायात
वनरीक्षक जाोंच कायदिाही में उपक्तस्थत नहीों हुए वजसके
अभाि में सोंबोंवर्त श्रवमक क उनसे प्रवतपरीक्षण का
अिसर प्रर्ान नहीों ह सका।

जाोंच अवर्कारी द्वारा प्रस्तुत अपनी जाोंच
ररप टद के समथदन में िह न्यायालय में उपक्तस्थत नहीों
हुए न ही अपनी जाोंच क प्रमावणत वकया है और न ही
चेवकोंग र्ल के अन्य सहय गी ि ररप टदकताद ही जाोंच
ररप टद की पुवष्ट हेतु न्यायालय में उपक्तस्थत हुए अतः
श्रवमक पर लगाये गये आर प ों के सोंबोंर् में करायी गयी
घरेलू जाोंच उवचत ि िैर्ावनक नहीों कही जा सकती।

इस प्रकार पत्रािली पर उपलब्ध समस्थ
तथ् ों, साक्ष्य एिों वििेचना के आर्ार पर घरेलू जाोंच
प्राकृवतक न्याय के वसद्धान्त ों के अनुरुप की जानी
प्रतीत नहीों ह रही है अतः घरेलू जाोंच र्ूवषत है।
तर्ानुसार प्रारक्तम्भक िार् वबन्र्ू वनणीत वकया जाता
है।"

8. In further proceedings, Manohar Lal, a
member of 3 member checking team recorded
his statement before the Labout Court, who did
not appear during domestic enquiry. Other
member, Roshan Lal, since dead, could not
appear in domestic enquiry, though had
appeared during domestic inquiry.

9. The Presiding Officer, Labour Cout
passed award dated 29.04.2021 and has held that
termination of service of respondent no.1 was
not legal and directed him to be reinstated with
all benefits. The relevant part of the order is
mentioned hereinafter:

"इस साक्षी ने अपनी साक्ष्य में यह कहा है
वक बस सों0 यू0पी0 25 क्ू 9475 की चेवकोंग मैंने की
थी। जब मैं चेवकोंग कर रहा था त मेरे साथ सहायक
यातायात वनरीक्षक बर्ायूूँ श्री र िन लाल, श्री
ए0के0पाण्डे सहायक क्षेत्रीय प्रबोंर्क बर्ायूूँ थे। श्री
र िन लाल की मृत्यु ह गयी है सेिाकाल के र्ौरान
और यह भी सुना है वक श्री ए0के0पाण्डे साहब की भी
मृत्यु ह गयी है। श्रवमक के विरुद्ध आर प सावबत
करने के वलये सेिाय जक की ओर से ऐसा क ई साक्ष्य
पत्रािली पर नहीों है। मुख्य साक्षी श्री र िन लाल
सहायक यातायात वनरीक्षक ि श्री ए0के0पाण्डे
सहायक क्षेत्रीय प्रबोंर्क बर्ायूूँ की मृत्यु ह चुकी है
इसीवलए श्रवमक के विरुद्ध आर प सावबत नहीों ह ना
पाया जाता है।

उपययाक्त सम्पूणा कववेचन के आधार पर
संिभाािेश इस प्रकार कनणीत ककया िाता है कक
श्रकमक श्री प्रभूियाल पयत्र स्व0 श्री मंगयलाल पिनाम
पररचालक की सेवायें किनांक 16-2-2013 से
समाप्त करना उकचत तथा/अथवा वैधाकनक नहीं है
किसे कनरस्त ककया िाता है। वािी श्रकमक को
किनांक 16-2-2013 से नौकरी कनरन्तरता के साथ
सेवा में बहाल ककया िाता है एवं किनांक 16-22013 से श्रकमक सेवा में रहते हुए िो भी वेतन भत्ते
आकि प्राप्त करता वह सभी वेतन भत्ते आकि को
प्राप्त करने का अकधकारी है। प्रारम्भिक वाि कबन्िय
पर पाररत आिेश किनांक 17-2-2021 इस
अकभकनणाय का भाग होगा।" (emphasis added)

10. The above referred order/award is
impugned in the present writ petition.

Submission
on
behalf
of
the
petitioner.
364 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Shri Avijit Saxena, learned counsel for
the petitioner has submitted that reference
referred,
itself
was
illegal,
as
only
termination/punishment order dated 16.02.2013
was
referred.
Neither
the
order
dated
25.06.2013, whereby appeal nor order dated
05.12.2014
whereby
revision
filed
by
Respondent no. 1 was dismissed, were part of
the reference. Learned counsel has placed his
arguments on the basis of "Doctrine of Merger"
that only revisional order dated 05.12.2014
remained as operative decision under law and
original termination order dated 16.2.2013 and
appellate order dated 25.06.2013 got merged
with the revisional order dated 5.12.2014. He
buttress his argument by relying upon the
following judgments. (i) Gojer Bros. Pvt. Ltd.
Vs. Ratan Lal Singh (1974) 2 SCC 453, (ii)
Collector Customs, Calcutta Vs. East India
Commercial Co. AIR 1963 SC 1124 and (iii)
S.S.Rathore Vs. State of Madhya Pradesh
(1989) 4 SCC 582. Relevant paragraphs No.12,
13 and 14 of S.S. Rathore (supra) are mentioned
hereinafter:

"12. The next Constitution Bench
decision of this Court is that of Collector of
Customs, Calcutta v. East India Commercial Co.
Ltd. [1963] 2 SCR 563 where this Court
observed :

The question, therefore, turns on
whether the order of the original authority
becomes merged in the order of the appellate
authority even where the appellate authority
merely dismisses the appeal without any
modification of the order of the original
authority. It is obvious that when an appeal is
made, the appellate authority can do one of
three things, namely, (i) it may reverse the order
under appeal, (ii) it may modify that order, and
(iii) it may merely dismiss the appeal and thus
confirm the order without any modification. It is
not disputed that in the first two cases where the
order of the original authority is either reversed
or modified it is the order of the appellate
authority which is the operative order and if the
High Court has no jurisdiction to issue a writ to
the appellate authority it cannot issue a writ to
the original authority. The question therefore is
whether there is any difference between these
two case and the third case where the appellate
authority dismisses the appeal and thus confirms
the order of the original authority. It seems to us
that on principle it is difficult to draw a
distinction between the first two kinds of orders
passed by the appellate authority and the third
kind of order passed by it. In all these three case
after the appellate authority has disposed of the
appeal, the operative order is the order of the
appellate authority whether it has reversed the
original order or modified it or confirmed it. In
Jaw, the appellate order of confirmation is quite
as efficacious as an operative order as an
appellate order of reversal or modification.

13. A three Judge Bench decision in
the case of Somnath Baku v. The State of Orissa
and Ors. (1969)3SCC384 is an authority in
support of the position as accepted by the two
Constitution Bench judgments referred to above.
There, it was held in the case of a service
dispute that the original order merged in the
appellate order of the State Government and it is
the appellate decision which subsisted and
became operative in law and was capable of
enforcement. That judgment relied upon another
decision of this Court in support of its view
being C.I.T. v. Amrit lal Bhagilal & Co. [1958]
34 ITR 130 (SC) .

14.
The
distinction
adopted
in
Mohammad Nooh's case between a court and a
tribunal being the appellate or the revisional
authority is one without any legal justification.
Powers of adjudication ordinarily vested in
courts are being exercised under the lay by
tribunals and other constituted authorities. In
fact, in respect of many disputes the jurisdiction
of the Court is now barred and there is a vesting
of jurisdiction in tribunals and authorities. That
being the position, we see no justification for the
distinction between courts and tribunals in
11 All. Regional Manager & Anr. Vs. Prabhu Dayal & Anr.
365
regard to the principle of merger. On the
authority of the precedents indicated, it must be
held that the order of dismissal made by the
Collector did merge into the order of the
Divisional Commissioner when the appellant's
appeal was dismissed on 31.8.1966."

12. Learned counsel also contended that
jurisdiction of the Labour Court was barred by
the principle of res judicata, since Respondent
no. 1 had challenged the validity of his
termination in departmental appeal and revision
and the appellate and revisional authorities had
adjudicated upon the said issue and given their
decision, he is barred from raising the same
issue before Labour Court being barred by res
judicata. Thus proceedings before labour court
were without jurisdiction and void. In support of
his submission he has relied upon following
judgments: (i) Pondicherry Khadi and Village
Industries Vs. P Kulothangan & Anr (2004) 1
SCC
68,
(ii)
District
Administrative
Committee and another Vs. Presiding Officer,
Labour Court, Bareilly, 2008 (4) ADJ 658
and
(iii)
U.P.
State
Road
Transport
Corporation, Kanpur Vs. Mahmood Khan
and another, 2007 (4) ADJ 345. Relevant
paragraphs No.7,8,9 and 10 of Mahmood
Khan, (supra) are mentioned hereinafter:

"7. In my opinion, the reference with
regard to the validity and legality of the order of
the termination of the respondent No. 2 could
not have been referred for adjudication to the
labour court. In my opinion, the reference was
barred by the principles of res judicata.

8. In Executive Engineer, ZP. Engg.
Divn. and Anr. v. Digambara Rao and Ors.:
2004(8) SCC 262, the Supreme Court held that
the principles of res judicata squarely applies to
an industrial adjudication. In this case, the
workman had challenged the validity of his
termination order before a writ court and after
the dismissal of the writ petition, the workman
got the matter referred for adjudication under
the Industrial Disputes Act before the labour
court and in that scenario, the Supreme Court
held that no industrial dispute could have been
referred to the labour court and that the
principles
of
res
judicata
was
squarely
applicable.

9. In Pondicherry Khadi and Village
Industries Board v. P. Kulothangan and Anr.:
(2004) 1 SCC 68, the Supreme Court held that
the principle of res judicata would operate on a
court or tribunal holding-

We are, therefore, of the opinion that
the High Court erred in upholding the award of
the Labour Court having regard to Section 11 of
the Code of Civil Procedure. In this view of the
mater, it is not necessary for us to consider the
other contentions raised by the appellant. The
appeals are accordingly allowed and the
decision of the High Court as well as the award
of the Labour Court are set aside. However, the
appellant will not recover any amount that may
have been paid to the respondent under the
provisions of Section 17B of the Industrial
Disputes Act, 1947. There will be no order as to
cost.

10. In view of the aforesaid, once the
workmen elects a forum for adjudication of a
dispute, it is not open to him to approach
another forum at a subsequent stage."

13. Mr. Saxena, learned counsel also
submitted that State Government did not form
reasoned opinion before making reference and
relied upon a judgment passed by Apex Court in
Secretary, Indian Tea Association Vs. Ajit
Kumar Barat And Ors, (2000) 3 SCC 93.

14. Mr. Saxena, lastly submitted that
Labour Court cannot travel beyond reference
and he relied upon a judgment passed by Apex
Court in Hochtief Gammon Vs. Industrial
Tribunal, Bhubaneshwar, AIR 1964 SC 1746,
wherein it has been held that Industrial Tribunal
is a tribunal of limited jurisdiction and can try
only those disputes referred to it through order
366 INDIAN LAW REPORTS ALLAHABAD SERIES
of reference. It can neither expand the scope of
reference nor can travel beyond it as terms of
reference determines the scope of power and
jurisdiction of tribunal.

Submissions on behalf of Respondent
No.1

15. Shri Samir Sharma, Senior Advocate
assisted by Shri Aditya Vardhan Singh, learned
counsel for the respondent no.1 stated that all the
arguments raised by the petitioner are without
any pleadings in the writ petition and relied
upon paragraph 20 of Union of India and
others vs. Dinesh Prasad, 2012 (12) SCC 63,
wherein it is held that:

"20. In our view, the learned Single
Judge was clearly in error in allowing such
argument. Firstly, the argument was raised
without any foundation in the writ petition. No
plea of actual or likelihood of bias was raised in
the writ petition. There was also no plea taken in
the writ petition that he was denied fair trial in
the course of summary court-martial. Secondly,
and more importantly, the learned Single Judge
overlooked and ignored the statutory provisions
referred to hereinabove. The Division Bench
also failed in considering the matter in right
perspective and in light of the provisions in the
Army Act and the Army Rules."

16. Learned Senior Counsel submits that
the reference order was couched in very wide
terms, as it did not refer to any order. Instead, it
only referred to the date of termination of
service of the workman. The appellate and
revisional order only confirmed the order of
termination of service, however date of
termination, remained the same. Thus, according
to "doctrine of relation back", the date of
termination related back to the original date.
Thus there was no infirmity in the reference
order. He has relied upon following judgments
passed by Supreme Court in R.Thiruvirkolam
Vs. Presiding Officer and another, 1997 (1)
SCC 9, and Life Insurance Corporation of
India and others VS. Central Industrial
Tribunal, Jaipur and others, 1997 (1) SCC 59.
Relevant
paragraphs
4
and
13
of
R.
Thiruvirkolam (supra) states that:

"4. Reference may be made first to the
decision in Kalyani. This point arose directly
before the Constitution Bench and such a
contention was rejected, making a distinction
between a case where no domestic inquiry had
been held and another in which the inquiry is
defective for any reason and the Labour Court
on its own appraisal of evidence adduced before
it reaches the conclusion that the dismissal was
justified. It was held that in a case where the
inquiry was found to be defective by the Labour
Court and it then came to the conclusion on its
own appraisal of evidence adduced before it that
the dismissal was justified, the order of
dismissal made by the employer in a defective
inquiry would still relate to the date when that
order was made. In that decision it was stated
thus:

...If the inquiry is defective for any
reason, the Labour Court would also have to
consider for itself on the evidence adduced
before it whether the dismissal was justified.
However, on coming to the conclusion on its
own appraisal of evidence adduced before it that
the dismissal was justified its approval of the
order of dismissal made by the employer in a
defective inquiry would still relate back to the
date when the order was made.... In the present
case an inquiry has been held which is said to be
defective in one respect and dismissal has been
ordered. The respondent had however to justify
the order of dismissal before the Labour Court
in view of the defect in the inquiry. It has
succeeded in doing so and therefore the
approval of the Labour Court will relate back to
the date on which the respondent passed the
order of dismissal. The contention of the
appellant therefore that dismissal in this case
11 All. Regional Manager & Anr. Vs. Prabhu Dayal & Anr.
367
should take effect from the date from which the
Labour Court's award came into operation must
fail.

13. As a result of the aforesaid
decision it must be held that the only point
involved for decision in the appeal is concluded
against the appellant by the Constitution Bench
decision of this Court in Kalyani and the
observations to the contrary in Gujarat Steel
are, therefore, per incuriam and not binding.
The order of punishment in the present case
operated from November 18, 1981 when it was
made by the employer and not from December
11, 1985, the date of Labour Court's award. The
appellant is, therefore, not entitled to any
relief."

17. Mr. Samir Sharma, learned Senior
Advocate further argued that the Labour Court
while adjudicating the matter can consider the
issues incidental to/connected with the dispute
referred and the actual dispute has to be gauged
from the pleadings of the parties. The
appellate/revisional order were connected with
the dispute referred i.e. validity of termination of
the workman w.e.f. 16.02.2013. Thus there was
no infirmity in the order of reference and the
impugned award. He has relied upon judgments
in Syndicate Bank Limited Vs. Workmen,
1966 (2) LLJ 194 (SC); Delhi Cloth &
General Mills Co. Ltd. Vs Workmen and
others, AIR 1967 SC 469, Western India
Match Company Ltd. Vs. Workmen, 1974 (3)
SCC 330; Executive Engineer, Electricity
Store Division, Gorakhpur and another Vs.
Presiding Officer, Labour Court, Gorakhpur
and others, 1997 (1) UPLBEC 322 (Alld); J.K.
Synthetics
Vs.
Rajasthan
Trade
Union
Kendra and others; 2001 (2) SCC 87 and
Managing
Director,
A.P.
State
Road
Transport Corporation Vs. Presiding Officer,
Industrial Tribunal, Ramkote, Hyderabad
and others, 2001 (2) SCC 695. Relevant
paragraphs 2 and 7 of Managing Director, A.P.
State Road Transport Corporation (supra)
are mentioned hereinafter:

"2. In this Court the contentions urged
before the Tribunal and the High Court are
reiterated that the question referred to the
Tribunal being of a limited character as to
whether the benefits accruing to the present
T.T.D. workers could be extended to the
employees of the transport wing or not and
having answered that the said employees have
all opted for being governed by the Corporation
rules and regulations and other service
conditions, it is not open to them to claim those
benefits.

7. Shri Nageswara Rao pointedly
addressed that direction given by the Tribunal is
far beyond the scope of the reference. The
question referred to the Tribunal though worded
as to the cover applicability of conditions of
service in T.T.D. to the members of the
respondent Union, what was really in issue is as
to what conditions of service are applicable to
them after they exercised their option to abide
by the Corporation regulations, and thereafter
both parties have raised pleadings and adduced
evidence. Hence, we cannot say that the
Tribunal
travelled
beyond
the
scope
of
reference."

18. He further submitted that with the
insertion of Section 11-AA (Central Act, 1947)/6
(2-A) of U.P. I.D. Act, 1947, the Labour
Court/Industrial Tribunal has been invested with
very wide powers to not only adjudicate upon the
validity of the departmental enquiry, but also the
proof of charges and the proportionality of
punishment imposed against the workman. In
support of his submission he relied upon Workmen
of M/S Firestone Tyre & Rubber Co. of India (P)
Ltd. Vs. Management & Others, 1973 (1) SCC
813. Relevant paragraphs of Workmen of M/S
Firestone Tyre & Rubber Co. of India (P) Ltd.
(supra) are mentioned hereinafter:
368 INDIAN LAW REPORTS ALLAHABAD SERIES

"32-A. The above was the law as laid
down by this Court as on 15-12-1971 applicable
to all industrial adjudication arising out of
orders of dismissal or discharge.

33. The question is whether Section
11A has made any changes in the legal position
mentioned above and if so, to what extent ? The
Statement of objects and reasons cannot be
taken into
account for
the
purpose
of
interpreting the plain words of the section. But it
gives an indication as to what the Legislature
wanted to achieve. At the time of introducing
Section 11A in the Act, the legislature must have
been aware of the several principles laid down
in the various decisions of this Court referred to
above. The object is stated to be that the
Tribunal should have power in cases, where
necessary, to set aside the order of discharge or
dismissal and direct reinstatement or award any
lesser punishment. The Statement of objects and
reasons
has
specifically
referred
to
the
limitation on the powers of an Industrial
Tribunal, as laid down by this Court in Indian
Iron and Steel Co. Ltd. Case.

40. Therefore, it will be seen that both
in respect of cases where a domestic enquiry has
been held as also in cases where the Tribunal
considers the matter on the evidence adduced
before it for the first time, the satisfaction under
Section 11A, about the guilt or otherwise of the
workman concerned, is that of the Tribunal. It
has to consider the evidence and come to a
conclusion one way or other. Even in cases
where an enquiry has been held by an employer
and a finding of misconduct arrived at, the
Tribunal can now differ from that finding in a
proper case and hold that no misconduct is
proved.

41. We are not inclined to accept the
contentions advanced on behalf of the employers
that the stage for interference Under section 11A
by the Tribunal is reached only when it has to
consider the punishment after having accepted
the finding of guilt recorded by an employer. It
has to be remembered that a Tribunal may hold
that the punishment is not justified because the
misconduct alleged and found proved is such
that it does not warrant dismissal or discharge.
The Tribunal may also hold that the order of
discharge or dismissal is not justified because
the alleged misconduct itself is not established
by the evidence. To come to a conclusion either
way, the Tribunal will have to reappraise the
evidence for itself. Ultimately it may hold that
the misconduct itself is not proved or that the
misconduct proved does not warrant the
punishment of dismissal or discharge. That is
why, according to us, Section 11A now gives full
power to the Tribunal to go into the evidence
and satisfy itself on both these points, Now the
jurisdiction of the Tribunal to reappraise the
evidence and come to its conclusion enures to it
when it has to adjudicate upon the dispute
referred to it in which an employer relies on the
findings recorded by him in a domestic enquiry.
Such a power to appreciate the evidence and
come to its own conclusion about the guilt or
otherwise was always recognised in a Tribunal
when it was deciding a dispute on the basis of
evidence adduced before it for the first time.
Both categories are now put on a par by Section
11A.

42. Mr. Deshmukh rather strenuously
urged that in all its previous decisions, this
Court had not considered a breach or an
illegality, as he calls it committed by an
employer in not holding a domestic enquiry. The
learned Counsel urged that this Court has
consistently held in several decisions that there
is an obligation on the part of an employer to
conduct
a
proper
domestic
enquiry
in
accordance with the Standing Orders before
passing an order of discharge or dismissal.
Hence an order passed without such an enquiry
is, on the face of it, illegal. The effect of such an
illegal order deprives the employer of an
opportunity being given to him to adduce
evidence for the first time before the Tribunal to
justify his action. These aspects, according to
the learned Counsel, have not been considered
11 All. Regional Manager & Anr. Vs. Prabhu Dayal & Anr.
369
by this Court when it recognised an opportunity
to be given to an employer to adduce evidence
before the Tribunal.

50. The legislature in Section 11A has
made a departure in certain respects in the law
as laid down by this Court. For the first time,
power has been given to a Tribunal to satisfy
itself whether misconduct is proved. This is
particularly so, as already pointed out by us,
regarding even findings arrived at by an
employer, in an enquiry properly held. The
Tribunal has also been given power, also for the
first time, to interfere with the punishment
imposed by an employer. When such wide
powers have been now conferred on Tribunals,
the
legislature
obviously
felt
that
some
restrictions have to be imposed regarding what
matters could be taken into account. Such
restrictions are found in the Proviso. The
Proviso only emphasises that the Tribunal has to
satisfy itself one way or other regarding
misconduct, the punishment and the relief to be
granted to workmen only on the basis of the
'materials on record' before it. What those
materials comprise of have been mentioned
earlier. The Tribunal, for the purposes referred
to above, cannot call for further or fresh
evidence, as an appellate authority may
normally do under a particular statute, when
considering the correctness or otherwise of an
order passed by a subordinate body. The
'matter' in the Proviso refers to the order of
discharge or dismissal that is being considered
by the Tribunal."

19. Learned Senior Advocate also
submitted that the principle of res judicata is
referable to Section 11 of CPC which refers to
an issue decided by a Court. The aforesaid
principle is not applicable to the facts of the
present case, as the order passed by the Regional
Manager of the UPSRTC in appeal and the
Managing Director in revision, cannot be said to
be an order passed by a Court. Section 2-A of
the U.P. Industrial Disputes Act, 1947, provides
for the termination of service of a workman to
be deemed to be an industrial dispute. Hence by
operation of law, the termination of the
respondent workman was an industrial dispute,
and the rejection of appeal/revision would make
no difference.

20. Lastly, he submitted that it is not open
for the petitioner to challenge the order referring
the dispute to the Labour Court, without there
being any pleadings/relief in that respect in the
writ petition. He has relied upon Bharat Singh
& Others Vs. State of Haryana & Others,
(1988) 4 SCC 534, and submitted that in any
case, once the termination of service of the
respondent workman was deemed to be an
industrial dispute, (under section 2-A of the U.P.
Industrial Disputes Act, 1947), no reasons were
required while referring the dispute. Relevant
paragraph 13 of Bharat Singh & Others
(supra) is mentioned hereinafter:

"13. As has been already noticed,
although the point as to profiteering by the State
was pleaded in the writ petitions before the High
Court as an abstract point of law, there was no
reference to any material in support thereof nor
was the point argued at the hearing of the writ
petitions. Before us also, no particulars and no
facts have been given in the special leave
petitions or in the writ petitions or in any
affidavit, but the point has been sought to be
substantiated at the time of hearing by referring
to certain facts stated in the said application by
HSIDC. In our opinion, when a point which is
ostensibly a point of law is required to be
substantiated by facts, the party raising the
point, if he is the writ petitioner, must plead and
prove such facts by evidence which must appear
from the writ petition and if he is the respondent,
from the counter-affidavit. If the facts are not
pleaded or the evidence in support of such facts
is not annexed to the writ petition or to the
counter-affidavit, as the case may be, the court
will not entertain the point. In this context, it
370 INDIAN LAW REPORTS ALLAHABAD SERIES
will not be out of place to point out that in this
regard there is a distinction between a pleading
under the CPC and a writ petition or a counteraffidavit. While in a pleading, that is, a plaint or
a written statement, the facts and not evidence
are required to be pleaded, in a writ petition or
in the counter-affidavit not only the facts but
also the evidence in proof of such facts have to
be pleaded and annexed to it. So, the point that
has been raised before us by the appellants is
not entertainable. But, in spite of that, we have
entertained it to show that it is devoid of any
merit."

Discussion and Conclusion

21. Heard the learned counsel for the
parties,
perused
the
record
and
written
submissions filed by parties.

22. The reference was only to consider
whether the respondent no.1 was legally
terminated on 16.02.2013, i.e. the termination
order. According to ''theory of merger' order of
termination and order passed by appellate
authority got merged into order passed in
revision, which upheld the order of termination
however, the respondent no.1 would be
considered to be terminated from service with
effect from 16.02.2013 only, therefore according
to doctrine of ''relation back' the relevant date
would be 16.02.2013 for termination and not the
date when appeal and revision were dismissed.
In Kunhayammed & Ors Vs. State of Kerala
and another, (2000) 6 SCC 359, the Supreme
Court has held that "the doctrine of merger is
not a doctrine of universal or unlimited
application. It will depend on the nature of
jurisdiction exercised by the superior forum and
the content or subject matter of challenge laid or
capable of being laid shall be determinative of
the applicability of merger."

23. In the present case, domestic enquiry
and Labour Court are not in one line of forum.
Therefore, doctrine of merger would not come
into play. In case, order passed in domestic
enquiry was challenged before High Court prior
to reference, then issue of res judicata would
also be very important as held in Mahmood
Khan (supra) but in the present case
Respondent no. 1 has not challenged his
termination order or the orders passed in appeal
and revision before the High Court. Therefore,
the judgment in Mahmood Khan (supra)
would not be applicable in the present case.

24. District Administrative Committee
(supra) was a case under U.P. Cooperative
Societies Act, 1965, where statutory remedy was
available in the relevant Act. However, it was
not the case in hand, therefore, res judicata
would not be applicable. Relevant paragraphs
no. 12 of said judgment is mentioned
hereinafter:

"12. There is yet another facet to the
issue.