JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed against an Award dated 27.9.2000 (Annexure 3 to the writ petition) passed by the Presiding Officer, Labour Court (III), U.P., Kanpur in Adjudication Dispute No. 165/94. By the aforesaid award, the Labour Court has held that the termination of the workman w.e.f. 26.10.1969 was illegal but instead of granting relief of reinstatement in service with full back wages the Labour Court only granted wages and other benefits from 1.9.1994 to 31.12.1997, i.e., wages from the date of reference to the date of retirement.
3. The facts in brief are that respondent No. 1, the workman concerned was working on the post of Driver in the erstwhile U.P. Government Roadways. On 15.5.1969 he was found carrying 16 passengers without tickets besides two cycles without proper booking, when the bus was checked by the checking authorities on Fatehpur-Kishanpur route. He was removed from service on 2.10.1969 after holding a departmental enquiry into the misconduct. The order of removal is appended as Annexure 1 to the writ petition as under: -
dk;kZy; vkns'k fnukad 21-15 cts rd leLr ;krk;kr v/kh{kd usloZ dh jlhn vgen lo- iz-iz- fln~nhd ,oa lgk;d ;krk;kr fujh{kdks ds lkFk ojk uEoj 1564 dk fujh{k.k fd;k A Jh jlhn vgen lgk;d ;krk;kr fujh{kd usloZ izFke bl jksdus dk ladsr fn;k fdUrq mls ladsr ij cl ds u :dus ij Jh fln~ndh lgk;d ;krk;kr fujh{kd dh fd muls dqN nwj gn ij [kM+s Fks ladsr fd;k muds Hkh ladsr ij cl ugh :dh fQj Jh 'kkL=h ;krk;kr v/kh{kd tks fd dqN vksj vkxs [kM+s Fks muds ladsr ij cl jksdh x;h ftls pkyd Jh f'ko'kadj yky feJk Qrsgiqj fMiks ds Fks A ifjpkyd Jh jke vkSrkj Fks A dqy 26 ;kf=;ksa esa ls 16 ;k=h fVdV ;k=k djrs gq, ik;s x;s ftuesa fy, fujh{k.k LFky ij fVdV cuk;k x;k blds vfrfjDr nks lkbfdyksa fcuk cqd Fkh ftudk Hkh fVdV cuk A ;krk;kr v/kh{kd ds izfrosnun ds vk/kkj ij Jh f'ko'kadj yky feJ pkyd dks ;g fuyafcr fd;k x;k ,oa bl dk;kZy; vkjksi i= la- 6349 fnukad 12-6-69 }kjk buds fo:) fuEufyf[kr vkjksi yxk;s x;s%& 1- ;g fd og fcuk fVdV ;k=h; lokj co ij ys x;s A 2- ;g fd og ladsr ij cl pykus dk iz;Ru fd;k A fuyfEcr pkyd us vkjksi i= ds izfrLFky izLrqr fd;k izek.ki= esa tkp dk;Zokgh dks buds iw.kZ larks"k gS lfgr lEcU/k dh lw= mUgsa yxk;s x;s vkjksiksa ds izkIr nk"kh ik;s x;s iwNu sij layXu fooj.k lwpuk la[;k 10569 [k.M la-1 Hkkx&1 ¼64½ A 69 fnukad 16-8-69 }kjk ;g izfrosnu layXu djrs gq, ;g ik;k x;k fd bl ( vLi"V) lsok ls i`Fkd dj fn;k tkos A fuyfEcr pkyd ds dkj. lwpuk ds izfr mDr izLrqr fd;k layXu gS c;ku lEcfU/kr ifji=ksa dk HkyhHkkafr voyksdu fd;k A vkjksfir deZpkjh ( vLi"V) vf/kdkjh ;krk;kr v/kh{kd ds ikl tkdj ( vLi"V) nsus ls Jh jlhn vgen lgk;d ;krk;kr v/kh{kd ds ladsr ij cl ugha jksdh tk ldk bl lEcU/k esa ( vLi"V) fVIi.kh dh vko';drk ugha gS muds fo:) yxk;s x;s vkjksi le{k fl) gS mUgsa nks"kh ik;k x;k A eSa Jh f'ko'kadj yky feJ fuyfEcr pkyd dks muds fuyEcu dh frfFk ls lsok ls i`Fkd ( vLi"V) djrk gwW A g- viBuh;
¼fn- dq- JhokLro½ lgk;d izcU/kd tsM] bykgkckn A**
4. A departmental appeal was preferred by the respondent-workman against the order of removal which was rejected on 9.1.1970.
5. After removal from service from U.P. Roadways in 1969 no action was taken by the workmen challenging his termination. Later on when the Uttar Pradesh State Road Transport Corporation was created on 1.6.1972, the workman filed a claim petition in the year 1976 before the Public Service Tribunal, Lucknow challenging his removal from service by the U.P. Govt. Roadways. Thereafter he filed Writ Petition No. 19932 of 1987, which was dismissed vide judgment dated 3.11.1987 on the ground of latches/limitation.
6. The contention of the counsel for the petitioner is that Writ Petition No. 1932 of 1987 having been dismissed, the industrial dispute raised by the workman relating to his removal from service was barred by the principles of res judicata as the earlier writ court judgment would amount to a 'case finally decided' within the meaning of Section 11 of the Code of Civil Procedure. He has relied upon the decisions rendered in Pondicherry Khadi and Village Industries Board v. P. Kulothangan and Anr., (2003 (99) F.L.R. 1175) and Ram Gobinda Daw and Ors. v. Smt. H. Bhakta Bvala Dassi etc. (A.I.R. 1971 S.C. 664) in support of above contention.
7. In the case of Pondicherry Khadi and Village Industries Board (supra) the apex court has held that although entire Civil Procedure Code is not applicable to industrial adjudication the principle of res judicata laid down in Section 11 of the Code is applicable and having got an adverse order in writ petition the petitioner could not have challenged or reagitated before the Labour Court.
8. In the case of Ram Gobinda Daw (supra) the court has held that where a former suit was dismissed by a trial court either for want of jurisdiction or for default of plaintiff's appearance etc. it does not amount to the appeal being heard and finally decided on merits whatever may be the ground for dismissal of the appeal. After discussing the case law the Court held that when the decision was given by trial court after contest it operates as res judicata even if appeal therefrom might have been dismissed on some preliminary grounds like limitation.
9. The next contention of the counsel for the petitioner is that the services of the respondent-workman had been terminated as back as in the year 1969 when he was in the services of the erstwhile U.P. Government Roadways and since the U.P. State Road Transport Corporation was created on 1.6.1972 there was no privity of contract between the U.P. State Road Transport Corporation and respondent-workman and therefore no "industrial dispute" as defined under Section 2 (1) of the U.P. Industrial Disputes Act, 1947 between the petitioner-Corporation and respondent-workman could have arisen. He submits that the Reference of the dispute was thus bad and the conclusion arrived at by the Labour Court is illegal, erroneous and perverse. In this regard he has relied upon the decisions rendered in Jagdish Prasad Gupta and Ors. v. State of U.P. and Ors. (1980 (6) A.L.R. 81); judgment dated 16.5.1996 passed in Writ Petition No. 12818 of 1985 (U.P. State Road Transport Corporation v State of U.P. and Ors.) and judgment dated 29.1.2004 passed in Writ Petition No. 4760 of 1986 (U.P. State Road Transport Corporation v. State of U.P. and Ors.).
"The petition was dismissed as far back as 1969. This petition suffers from laches which have not been properly explained.
The petition is dismissed on the grounds of laches.
Sd/- V.N.K., J.
Sd/- U. Chandra 3.11.1987"
10. The above order in my opinion will operate as res judicata.
11. The counsel for the petitioner further submits that admittedly the services of the workman had been terminated in the year 1969 while he was working in the erstwhile U.P. Government Roadways and he had not worked in the petitioner-Corporation. The petitioner-Corporation could not place any document regarding departmental proceedings before the Labour Court being lost due to excessive delay/latches and with regard that there was no privity of contract between the petitioner-Corporation and the respondent-workman and in these circumstances where material evidence has been lost due to considerable delay or due to the fact that it was not in the possession of the Corporation the delay had become fatal and the dispute had become stale. Therefore, the claim of the respondent-workman ought to have been rejected by the Labour Court on the ground of latches alone. In this regard he has placed reliance upon the decision rendered in S.M. Nilajkar and Ors. v. Telecom, District Manager, Karnataka (2003 (97) F.L.R. 608 (para 17) which is as under: -
"17. It was submitted on behalf of the respondent that on account of delay in raising the dispute by the appellants the High Court was justified in denying relief to the appellants. We cannot agree. It is true, as held in Shalimar Works Limited v. Their Workmen (supra) that merely because the Industrial Disputes Act does not provide for a limitation for raising the dispute it does not mean that the dispute can be raised at any time and without regard to the delay and reasons therefore. There is no limitation prescribed for reference of disputes to an industrial tribunal; even so it is only reasonable that the disputes should be referred as soon as possible after they have arisen and after conciliation proceedings have failed particularly so when disputes relate to discharge of workmen wholesale. A delay of 4 years in raising the dispute after even re-employment of the most of the old workmen was held to be fatal in Shalimar Works Limited v. Their Workmen (supra). In Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors. (supra), a delay of 7 years was held to be fatal and disentitled the workmen to any relief. In Ratan Chandra Sammanta and Ors. v. Union of India and Ors. (supra), it was held that a casual labourer retrenched by the employer deprives himself of remedy available in law by delay itself; lapse of time results in losing the remedy and the right as well. The delay would certainly be fatal if it has resulted in material evidence relevant to adjudication being lost and rendered not available.
12. It is lastly submitted that in any case the Labour Court has failed to appreciate that strict rules of evidence are not applicable in the departmental proceedings/before the Labour Court and the preponderance of evidence clearly proved that the respondent-workman had connived with the conductor of the bus to embezzle departmental revenue. Further more the respondent-workman was guilty of committing perjury as he had made a false statement before the Labour Court that the writ petition filed by him had not been dismissed by the High Court due to which the Labour Court had proceeded with the reference on merits.
13. The counsel for the respondents submits that from para 5 of the award it is clear that the petitioner-Corporation has neither filed any written statement on merits nor has filed any document. It has also not adduced oral evidence before the Labour Court and as such the award given by the Labour Court on the basis of written statement, documents and oral evidence led by respondent-workman cannot be faulted with. He further submits that when the petitioner had not raised any plea before the Labour Court, it cannot be allowed to be raised for the first time involving factual determination of any question/issue before the High Court in view of the decisions of this Court in 1979 (39) F.L.R. 1; 1980 (41) F.L.R. 95; and 1997 (2) U.P.L.B.E.C. 1972.
14. It is urged that the order dated 20.2.1996 passed by the Labour Court holding the reference order to be legal and valid has not been challenged in the writ petition and as such the reference itself could not be raised for the first time in arguments. He has further submitted that from a bare perusal of office order dated 26.10.1969 (Annexure 1 to the writ petition) passed by the petitioner and the judgment and order dated 3.11.1987 passed by this Court in Writ Petition No, 19932 of 1987, it appears that the documents were with the petitioner-Corporation which were neither filed nor the petitioner contested the case, as such the petitioner is not entitled to get any relief under equity jurisdiction from this Court in view of the law laid down in 2004 S.S.C. (L & S) 617 State of Punjab v. Savinder Jeet Kaur. It is further submitted that the order dated 3.11.1987 passed in Writ Petition No. 19932 of 1987 shows that this Court dismissed the writ petition on the ground of latches, meaning thereby this Court has not decided the controversy on merits and as such the principle of res judicata has no application to the present case in view of the decision of the apex court rendered in Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy (A.I.R. 1971 2355), Tilokchand Motichand and Ors. v. H.B. Munshi Commissioner of Sales Tax, Bombay and Anr. (A.I.R. 1970 S.C. 898). He has further submitted that it is the settled view of this Court as well as of the apex court that the question of applicability of principle of res judicata is a mixed question of law and facts both and such question must be raised before the trial court and be pressed for framing of additional issue but the petitioner-Corporation took no such plea before the Labour Court and as such this plea cannot be allowed to be taken or raised before this Court in the writ petition under Article 226 of the Constitution. It is further submitted that the apex court in its various judgments held that an industrial dispute could not be thrown out on the ground of delay and latches and the Labour Court may mould the relief as no limitation has been provided either under the Industrial Disputes Act, 1947 (Central) or U.P. Industrial Disputes Act, 1947 and as such the award of the Labour Court is fully in accordance with law laid down by the apex court in Ajaib Singh v. Sirhind Co-operative Marketing-cum-Processing Service Society Ltd. and Anr. (1996 (6) S.C.C. 82) and Gurmail Singh v. Principal Government College of Education and Ors. (2000 (84) F.L.R. 920).
15. The counsel for the respondent-workman lastly urged that the writ petition being devoid of merits be dismissed directing the petitioner-Corporation to pay the entire back wages of the respondent-workman along with all retiral benefits with interest at the rate of 18 per cent.
16. The Labour Court has granted wages as well as benefit of imaginary/deemed service to the respondent-workman for the period 1.9.1994 to 31.12.1997, i.e., from the date of reference till he attained the age of superannuation. The operative part of the award is as under:
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17. Admittedly the services of the workman had been terminated on 26.10.1969 when he was in the U.P. Government Roadways. The petitioner-Corporation came into existence w.e.f. 1.6.1972 and the claim petition was filed by the workman before the Public Services Tribunal, Lucknow in 1976 challenging his removal from service. The Writ Petition No. 19932 of 1987 filed by him was dismissed vide order dated 3.11.1987 on the ground of laches. It is evident from the facts of the case that there was no privity of contract between the workman and the Corporation. The delay in raising the dispute by the workman in the circumstances would be fatal. Had he raised the dispute when his services were terminated in 1969 by the U.P. Government Roadways claiming his re-instatement and continuity of service it would have been another matter. The workman had not been able to prove that the record of his service etc. with the U.P. Government Roadways on termination of his services had been transmitted to the Corporation after its creation. The burden to prove his case lay on the workman that he was the employee of the Corporation, which was not discharged by him. Though an employer is not liable to maintain the records beyond a reasonable period of time in the instant case after closure of the U.P. Government Roadways and termination of his services in 1969 his services were not transferred on deputation to the U.P. State Road Transport Corporation. Until and unless it was proved by the workman that the record was available with the Corporation there was no question of his record being available with the Corporation, which was created in June 1972. The Labour Court has committed an illegality in laying burden of proof on the Corporation when according to the admitted facts the respondent-workman there was no privity of contract between and the U.P. State Road Transport Corporation. He was not an employee of the U.P. State Road Transport Corporation as he had no jural relationship with the Corporation. According to the U.P. Roadways Organization (Abolition of Posts And Absorption of Employees) Rules, 1982 (hereinafter called as 1982 Rules) framed under Article 303 of the Constitution, they had overriding effect. In the Judgment and order dated 16.5.1996 rendered by this Court in Writ Petition No. 12818 of 1987 it has been held:-
"By or under the Government Order No. 000/20-30-2-20-N-72 dated 7th June 1972 as amended by Government Orders No. 3414/30-2-170-N-72 dated 8th July 1972 the service of the employees of U.P.S.R.O. were placed on deputation with U.P.S.R.T.C. after its creation with effect from 1.6.1972 and said Government Order provides that all permanent and temporary officers and employees who were in service with the Government Roadways prior to the constitution of State Road Transport Corporation shall be deemed to be on deputation in service of the Corporation. He further states that since U.P.S.R.T.C. has not framed service rules under Section 45 of the said transport condition of service, therefore, the Government Order dated 7th June 1972 except para 1 (ka) was deemed to be cancelled. It was further provided that the condition of service of the officers and employees shall not be inferior to those which were available to them prior to absorption in U.P. Government Roadways and the period of work prior to the same shall be included by the Corporation for the purposes of seniority, promotion, pay fixation, leave and financial benefits, which shall be the same as were available in the Government Service. Therefore, the status of the respondent No. 3 continued to be that of the Government servant under the Government of U.P. on deputation to the Corporation and the conditions of service shall be governed by the Government Service Rules.
18. The petitioner had never been on deputation to U.P. State Road Transport Corporation as his services had been terminated in 1969 and there was no question of his giving any option for the same region. His services did not exist when the U.P. State Road Transport Corporation was created in 1972 and his post stood abolished as only the services of existing employees was transferred on deputation.
19. Since there was even no jural relationship of employer and employee between the petitioner and the respondent-workman, and there being no privity of contract between them at any point of time, he does not fall within the ambit of 'workman' as defined under Section 2 (z) of the U.P. Industrial Disputes Act, 1947 on no post in the U.P. State Road Transport Corporation he could be deemed to have been employed under the 1982 Rules.
20. The workman has already reached the age of superannuation during the pendency of the case before the Labour Court. The delay in raising the dispute against the erstwhile U.P. Government Roadways is fatal in the facts and circumstances of the case. Moreover, the dispute was barred by the principles of res judicata as held above.
21. The Labour Court has committed an illegality in granting potential amount of wages to the respondent-workman on the basis of assumption that he continued in service, after recording a finding that the real date of birth of the workman was not known and assuming his date of superannuation as 31.12.1997. Awarding him wages and other benefits from 1.9.1994 to 31.12.1997 for imaginary services which he would have earned had he remained in service till his superannuation in the facts and circumstances of this case by the Labour Court was wholly illegal and without any basis.
22. For the reasons stated above, the petition is allowed. The impugned award passed by the Labour Court is quashed. No order as to costs.