JUDGMENT D.G. Karnaik, J.
1. By this petition, the petitioners challenges the judgment and order dated 28th February 2002 passed by the learned Member Industrial Court, Mumbai dismissing their complaint bearing ULP No. 405 of 2000 as not maintainable. The facts giving rise to the petition are summarised below :--
2. Respondent No. 1 runs a hotel by name Horizon Beach Hotel at Juhu, Mumbai. Respondent Nos. 2 to 4 are the directors of the respondent No. 1. Petitioner No. 2 is one of the employees of respondent No. 1. The petitioner No. 1 is a trade union which claims to represent the workmen of the respondent No. 1. The claim, as can be seen later, is disputed by the respondents.
3. In June 1999, the industrial relations between the management of the respondent No. 1 and its workmen became strained. According to the respondent No. 1 on or about 17th June 1999, the workmen resorted to an illegal strike, while according to the workmen it was the management that was preventing the workmen from attending the work. On 10th July 1999, Bharatiya Kamagar Karmachari Sangh, the recognized union representing the workers of the respondent No. 1, filed a complaint against the respondents alleging that they were indulging in unfair labour practices under Item 6 of Schedule II and Item 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Unfair Labour Practices Act (for short 'the Act') In the complaint, the recognised union alleged that the respondent No. 1 had illegally effected a lock out by preventing the workmen to attend the work and thereby had an unfair practice under Item 6 of Schedule II of the Act. The recognised union also alleged that the respondents had failed to implement the settlement/agreement and had thereby committed an unfair labour practice under Item 9 of Schedule IV of the Act. The respondent No. 1 filed a counter complaint bearing ULP No. 828 of 1999 against the recognised union alleging that the recognised union was indulging in unfair labour practice by instigating the workmen to resort to an illegal strike. On 24th February 2000, the recognised union filed a purshis before the Industrial Court stating that taking into consideration the factual true position which had come to its knowledge and possession after filing of the complaint it was satisfied that the respondent No. 1 had not effected a lock out and therefore, it did not wish to prosecute the complaint. By that purshis, it requested that the complaint be disposed of for want of prosecution. On the very day the Industrial Court passed an order below the purshis disposing of the complaint for want of prosecution. Soon thereafter four employees of the respondent No. 1 filed an application in the said complaint alleging that being dissatisfied with the functioning of the recognised union the employees of the respondent No. 1 Company had decided to resign the membership of the union and had sent the resignation letters and had become the members of the petitioner No. 1 union with effect from 1st February 2000. They prayed that they should be impleaded as parties to the complaint. Learned counsel for the petitioner submits that the learned Member of the Industrial Court only orally told the said applicants that no orders can be passed on a complaint which had already been disposed. Learned counsel for the respondent does not admit that any such oral order was passed. The fact however remains that no written orders were passed by the Industrial Court and the said application was also not pursued by the applicants.
4. On 28th April 2000, the petitioner No. 2 along with some 29 other workmen filed another complaint bearing ULP 405 of 2000 against the respondent No. 1 alleging unfair labour practices under Item 6 of Schedule II and Item 9 of Schedule IV of the Act. The averments made in the complaint ULP 405 of 2000 filed by petitioner No. 2 along with the 29 other workmen were almost identical to the averments made in the earlier complaint ULP 730 of 1999 filed by the recognised union. Except for the addition of couple of paragraphs regarding the withdrawal of the complaint 730 of 1999 by the recognised union, there is no difference whatsoever between the averments between the two complaints. In the second complaint on an interim application of the complainants, the Industrial Court appointed an Investigating Officer with direction him to visit the establishment of the respondent No. 1, carry out the inspection and to submit a report on the situation inside the hotel. The complainants thereafter made a further interim application alleging that the respondents were about to close down the hotel and prayed for a direction to the Investigating Officer to visit again the premises and make report whether the hotel was totally closed and whether any Items were being removed from the hotel rooms. The respondent No. 1 opposed the said application on the ground that the second complaint was not maintainable at the threshold and therefore the application was not maintainable. It contended that the previous complaint bearing ULP 739 of 1999 filed by the recognised union on behalf of all the workmen was withdrawn unconditionally and therefore the second complaint on the very same grounds and on the very same cause of action was not maintainable. The objection found favour with the Industrial Court which by an order dated 11th June 2001 rejected the said application. The order was challenged by the petitioners by filing in this Court a Writ Petition bearing W. P. No. 2851 of 2001. At the hearing of the Writ Petition, the respondents stated that the hotel was running and if ever they desired to close it down they would do so in accordance with law. In view of the statement, the Court held that nothing survived in the Writ Petition and disposed of the Writ Petition. This Court however directed that Industrial Court should decide the issue of maintainability of the second complaint by 28th February, 2002. In accordance with this direction, the Industrial Court, after permitting the parties to adduce evidence and after hearing the parties, by an order dated 28th February, 2002 held that in view of the withdrawal of the first complaint by the recognised union the second complaint was not maintainable. Accordingly, it dismissed the complaint as not maintainable. That order is impugned in this petition.
5. Before the Industrial Court, the respondent pleaded that the filing of the second complaint was bad in law and second complaint was barred on the principle of res-judicata and principles analogous thereto and the complainants, who were then the members of the recognised union, were estopped from re-agitating the same grievances with the same prayers.
6. At the hearing before the Industrial Court, Learned Counsel for the respondents gave up the contention of bar of res judicata and in my view rightly. Section 11 of the Code of Civil Procedure which statutorily incorporates the principle of res-judicata says that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a formal suit between the same parties or between the parties under whom they claim and which has been heard and finally decided by the court in the earlier suit. The principle of res judicata has been applied not only by the civil court hearing a civil suit between the parties but has been extended and applied to other proceedings like Writ Petitions and even by the tribunals deciding matter involving determination of a civil right to the parties. The essential conditions for application of principle of res judicata are :--
i) There must be a former proceedings between the parties,
ii) There should be a subsequent proceeding between the same parties or between the persons under whom the parties to the second proceeding claim.
iii) In the former proceeding, there must be a decision on merits either of the whole proceeding or of an issue or issues in the proceeding,
iv) The subsequent proceeding must involve decision on the matters or issues which have already decided been in the former proceeding.
In the present case, the former complaint was withdrawn and there was no decision on merits on any issue involved in the former complaint. In the circumstances, it cannot be said that the second complaint was barred by the principles of res judicata or principles analogous thereto.
7. The Industrial Court however accepted the contention that the petitioners were barred from filing the second complaint on the very same allegations and for the very same reliefs as that of the first complaint on the principle of estoppel. It held that the first complaint No. 730/99 was filed by the recognised union on behalf of all the workmen. It also held that the committee members of the recognised union were attending the Court proceedings and were aware that the first proceedings were withdrawn under the purshis signed by Mr. Prakash Shinde, the secretary of the recognised union. It also held that the petitioner No. 1 union and the complainants of the second complaint were aware of the pendency of the first complaint and its withdrawal. It therefore held that the complainants were estopped from turning around and reagitating their grievances by filing the second complaint.
8. Learned counsel for the respondents supports the decision as well as the reasoning of the Industrial Court for holding that the petitioners were estopped from filing of the second complaint.
9. Learned counsel for the respondent further submits that the second complaint was barred under Order 23, Rule 1 of the Code of Civil Procedure or principles analogus thereto. Rule 1 of Order 23 of the Code of Civil Procedure says that any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of the claim. It further provides that where the Court is satisfied that a suit must fail by reason of some formal defect or there are sufficient grounds for allowing the plaintiff to institute the fresh suit on the same subject-matter, it may grant to the plaintiff permission to withdraw the suit or part of the claim with liberty to institute a fresh suit in respect of the same subject-matter. Sub rule (4) of Rule 1 of Order 23 of the Code of Civil Procedure says that where the plaintiff abandons any suit or part of a claim or withdraws from a suit or part of a claim without permission of the court to institute a fresh suit for the subject-matter of the suit or part of the claim withdrawn, he shall be precluded from instituting any fresh suit in respect of such subject-matter of part of the claim. Order 23, Rule 1 covers two types of cases, i) Where the plaintiff withdraws a suit or part of a claim with the permission of the court to bring in fresh suit on the same subject-matter and ii) Where the plaintiff withdraws a suit without the permission of the court. In the former case, where the leave of the Court is obtained for filing of a fresh suit on the same subject-matter the plaintiff is entitled to file a fresh suit subject to such terms, if any, on which the leave might have been granted. It is however open to the plaintiff to withdraw his suit or abandon his suit or any part of the claim without seeking a leave of the court. He can do so at his own sweet will and the court has no power to compel the plaintiff to continue with his suit or any part of the claim which he chooses to withdraw or abandon. However, where the plaintiff chooses to withdraw his suit or any part of a claim unconditionally and without leave of the court to file a fresh suit on the same cause of action, the plaintiff is forbidden from bringing in a fresh suit on the same subject-matter. Order 23, Rule 1 is based on public policy. The principle contained in Order 23, Rule 1 statutorily applies to suits filed in Civil Courts. In my view, the principle of Order 23, Rule 1 would apply, as matter of public policy even to all the judicial or quasi judicial proceedings taken before any court or authority even if it is not governed strictly by the strict rules of procedure contained in the Code of Civil Procedure.
10. I am fortified in my view by the decision of the Supreme Court rendered in Sarguja Transport Service v. State Transport Appellate Tribunal . Therein, the question was whether a second Writ Petition could be filed on the same grounds where an earlier Writ Petition had been withdrawn without leave of the court to file a fresh petition. The Supreme court held that though the provisions of the Code of Civil Procedure were not in terms applicable to the writ proceedings, the principle contained in Order 23, Rule 1 of the Code of Civil Procedure would apply to the writ proceedings on the basis of public policy. In paragraph No. 7 of the judgment, the Supreme Court observed :
In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in Sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by such court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in Sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in Sub-rule (3) in order to prevent the abuse of the process of the Court.
11. The principle in the Sarguja Transport Service (supra) was again affirmed by the Supreme Court in a later decision in Vpadhyay and Co. v. State of U.P. and Anr. reported in 1991(1) SCC 81, after affirming that the principles contained in Order XXIII, respondent No. 1 was based on rule of public policy and would also apply to the writ proceedings in a High Court the Supreme Court held that the rule would also apply to a Special Leave Petition (SLP) filed under Article 136 of the Constitution of India. It held that once a SLP filed against an order of the High Court had been withdrawn without obtaining from the court liberty to file a SLP again, fresh SLP against the same impugned order would not be maintainable.
12. In my view, the principle contained in Order XXIII Rule 1 of the Code of Civil Procedure would also apply equally to the proceedings before a Labour and Industrial Court, If the applicant/complainant approaching a Labour or Industrial Court withdraws unconditionally a proceeding without obtaining a leave of the Court to file a fresh proceeding on the same subject-matter, he would not again be allowed to file a fresh proceedings on the very same subject-matter.
13. The only questions that are required to be considered in the present case is whether the second complaint viz. complaint ULP 405 of 2000 was filed in respect of the same subject-matter covered under the previous complaint viz. complaint ULP No. 730 of 1999 and whether the second complaint was between the same parties or persons claiming under the same parties. Learned counsel for the petitioners does not dispute that the complaint 405 of 2000 was in respect of the same subject-matter as that of the first complaint viz. the legality or otherwise of the alleged lockout commenced from 17th June 1999. The first complaint was filed by a recognised union on behalf of all the workmen. The recognised union had a right to appear on behalf of all the workmen in the proceedings of the first complaint. In respect of an individual dispute an employee may be represented either by the recognised union or he may be represented by an unrecognised union or he may choose no representation by any of the unions. However, in respect of certain collective matters, viz. unfair labour practices alleged in Item Nos. 2 and 6 of Schedule IV of the Act, only a recognized union is allowed to appear and neither an unrecognised union nor are the workmen individually allowed to appear by reason of Section 21 of the Act. In Warden and Co. v. Akhil Maharashtra Kamgar Union reported in 2001(2) Mh.LJ. 484 : 2001 (11) CLR 359, a Division Bench of this Court has held that in respect of an allegation of unfair labour practice under Item 2 or 6 of Schedule IV of the Act only a recognised union would have a right to appear. Thus, right of a recognised union to represent the workmen in a proceeding before the Labour Court cannot be disputed is not rightly not disputed. The first complaint No. 730 of 1999 was filed by the recognised union. In the very opening paragraph of the said complaint, it was stated that the complaint was filed by the union in the capacity of the recognised union, i.e. for and on behalf of all the workmen. The complaints before the Industrial Court in the second complaint are all the employees of the respondent No. 1. The first complaint was filed on behalf of all the employees including the complainants in the second complaint. After the first complaint has been withdrawn by the recognised union and the withdrawal had become final, some of the employees of the respondent No. 1 cannot file a second complaint regarding the same subject-matter. If any other view is taken, it would be possible to file successive complaints by different employees after withdrawal of the complaint filed by the recognised union. This would be against a public policy of law.
14. In this view of the matter, it is not necessary for me to consider the other authorities cited by Learned Counsel for the petitioner on other points. I am in agreement of the view taken by the Industrial Court and second complaint was not maintainable. Hence, there is no merit in the petition which is hereby dismissed. In the facts and circumstances of the case, parties shall bear and pay their own costs.
15. Certified copy be expedited.