JUDGMENT Khandeparkar R.M.S., J.
1. Heard. Admit. The learned Advocate for the respondents waives service. By consent, heard forthwith.
2. This appeal arises from the order dated 15-10-2006 passed in Writ Petition No. 2516 of 2006. By the impugned order, the learned Single Judge has allowed the writ petition filed by the respondents herein against the order passed by the Industrial Tribunal on 19-8-2006 whereby the application dated 19-6-2006 filed by the appellants herein in Reference (IT) No. 76 of 2001 was allowed. The said application was filed by the appellants seeking to introduce certain pleadings, particularly on the point of "estoppel" and "community of interest" between the workmen and the non-workmen from amongst the monthly rated staff. The learned Single Judge while observing that the question as regards the community of interest and of estoppel was specifically the subject-matter of the decision of the Supreme Court in Mukand Ltd. v. Mukand Staff and Officers' Association reported in 2004 B.C.I. (S.C.) 233 : 2004 (1) C.L.R. 1062, held that the appellants by the proposed amendment had sought to set up the same plea that the respondents herein, who are the employers, are estopped by their past conduct from contending that certain members of the monthly rated staff are not workmen and the second plea to the effect that there is community of interest between the workmen at whose behest the reference has been made and the non-workmen from amongst the monthly rated staff. The learned Single Judge has, therefore, set aside the order of the Industrial Tribunal and has dismissed the application for amendment to the extent it relates to the said two pleas. It is to be noted that the reference in the case in hand was in relation to demand raised by the appellants that for the year 1998-99 all the members of the association were entitled for bonus at the rate of 20% in accordance with the Payment of Bonus Act and as per the custom of payment of bonus to all the employees including those drawing salary of more than Rs. 3,500/- per month.
3. Learned Advocate for the appellants, placing reliance in the decisions of the Apex Court in the matters of The Workmen of S. Hindustan Lever Ltd. and Ors. v. The Management of Hindustan Lever Ltd. and Isher Singh v. Sarwan Singh and Ors. reported in 1964 DGLS 237 : 1966-I S.C.J. 475, submitted that the learned Single Judge failed to consider that there is no res judicata on the point which had not been pleaded even if there was a finding concerning the point in the earlier proceedings. In that case, at the most, it can be a constructive res judicata. The issue before the Apex Court in the earlier decided case was not whether there was estoppel or community of interest but whether the pleadings and the evidence on record were sufficient to prove the plea of estoppel and community of interest. The contentions are sought to be controverted on behalf of the respondents.
4. Before considering the rival contentions, it would be appropriate to refer to the amendment which is sought to be introduced in the present proceedings and which has been disallowed by the learned Single Judge. The same reads thus:
Estoppel:
The Company in the past, has entered into various settlements under the provisions of the I.D. Act, 1947 which are submitted herewith before this Hon'ble Tribunal as Exhibit-A-Collectively.
The Company has made the Industrial Employment (Standing Orders) Act, 1946 applicable to all its workmen covered under the reference through a circular issued by the Managing Director of the company and accordingly charge-sheet were issued to the workmen in accordance with the Model Standing Orders framed under the Act. The same are filed herewith as Exhibit-B & C Collectively.
The Company has locked out all the staff covered under the present reference under provisions of MRTU & PULP Act, 1971. Copy of lock out notice is at Exhibit-D.
Whether an employee is a workman or not is not merely a question of law but a mixed question of law and fact. The events herein above and the conduct of the company clearly go to show that the company has accepted all the employees under the reference as "workmen" and hence they are estopped from contesting this claim of the workmen.
The Association representing the second Party states and submits that the first party company is estopped from claiming that any of the monthly rated staff are not workmen. Hence the Hon'ble Tribunal be pleased to reject every contentions of the company on these issues.
Community of interest between the workmen and so-called non-workmen from monthly rated staff:
It is submitted that even if it is assumed without admitting that any of the monthly rated staff are not workmen, then too, there is community of interest between the workmen and such non-workmen. Workers have a customary right to get the same benefits, as non-workmen on the same grade. Whenever a non-workmen is given a certain benefit and facility is also given to the workmen belonging to this same grade and vice versa. Hence, the workmen are vitally interested and have a genuine interest in the wages and benefits of the non-workmen. Hence it is submitted mat there exists a community of interest between workmen and non-workmen on the same grade. Further, many workmen are promoted to posts which the company claims are not workmen. Hence even if any such post is presumed to be out of the ken of the definition of workmen, the admitted workmen still are vitally and genuinely interested in the wages and benefits paid to such post. Being members of the same trade union, espousing me common cause and interests and having collectively bargained for salary revisions and service conditions and made settlements in the past, there exists community of interest among the members, whether workmen or not. Hence and otherwise also it is submitted that there is community of interest between the workmen and non-workmen on the same grade.
The proposed amendment seeks to set up a plea that the respondents herein who are the employers are estopped by their past conduct from contending that certain members of the monthly rated staff are not workmen. The second plea that is sought to be advanced is that there is a community of interest between the workmen at whose behest the reference has been made and the non-workmen from amongst the monthly rated staff. In sum and substance, therefore, two pleas are sought to be advanced viz. (i) the plea of estoppel and (ii) the plea that there is community of interest between the workmen and the non-workmen on whose behalf the claim in the reference is also sought to be pursued.
5. It will be worthwhile to take note of the amendment which was proposed to be introduced in the Reference (IT) No. 3 of 1993 by the appellants. That amendment was sought to be made subsequent to the decision of the Apex Court dated 10-3-2004 in Mukand's case (supra). The said amendment read thus:
Estoppel:
The Company, in the past has entered into various settlements under the provisions of the ID Act of 1947, which are on record before this Hon'ble Tribunal under Exhibit U-34.
The Company has made the Industrial Employment (Standing Orders) Act, 1946 applicable to all its workmen covered under the reference through a circular issued by the Managing Director of the company (U 48 & U 49) and accordingly charge sheet were issued to the workmen in accordance with the Model Standing Orders framed under the Act (U 80, 1-15).
The Company has locked out its workers covered under the reference under provisions of MRTU-PULP Act 1971 (U 18).
Whether an employee is a workmen or not is not merely a question of law but a mixed question of law and fact. The events herein above and the conduct of the company clearly go to show that the company has accepted the employees under the reference as "workmen" and hence they are estopped from contesting this claim of the workmen.
The Association representing the second party states and submits that the first part company is estopped from claiming that any of the monthly rated staff are not workmen.
Community of interests between the workmen and so-called non-workmen from monthly rated staff:
It is submitted that even if it is assumed without admitting that some of the monthly rated staff are not workmen, then too, there is community of interest between the workmen and such non-workmen. Workers have a customary right to get the same benefits, as non-workmen on the same grade. Whenever a non-workmen is given a certain benefit and facility is also given to the workmen belonging to this same grade and vice versa. Hence, the workmen are vitally interested and have a genuine interest in the wages and benefits of the non-workmen. Hence it is submitted that there exists a community of interest between workmen and non-workmen on the same grade. Further, many workmen are promoted to posts which the company claims are not workmen. Hence even if any such post is presumed to be out of the ken of the definition of workmen, the admitted workmen still are vitally and genuinely interested in the wages and benefits paid to such post. Being members of the same trade union, espousing the common causes and interests and having collectively bargained for salary revisions and service conditions and made settlements in the past, there exists community of interest among the members, whether workmen or not. Hence and otherwise also it is submitted that there is community of interest between the workmen and non-workmen on the same grade.
6. A perusal of the proposed amendment which was allowed by the Industrial Tribunal and disallowed by the learned Single Judge in the present case and the comparison thereof with the earlier rejected amendment would evidently disclose that both are word-to-word identical. Being so, the finding arrived at by the learned Single Judge that the proposed amendment is the verbatim copy of the earlier rejected amendment cannot be found fault with.
7. It is not in dispute that the amendment which was proposed to be made in the Reference (IT) No. 3 of 1993 subsequent to the decision of the Apex Court in Mukand's case was rejected by the Industrial Tribunal and the said order was confirmed by the learned Single Judge as well as by the Division Bench of this Court in Appeal No. 602 of 2005 in Writ Petition No. 1525 of 2005 holding thus:
4. The Supreme Court in its order dated March 10, 2004 while remitting the matter back to the Industrial Tribunal directed the Industrial Tribunal to adjudicate the claim of the workmen alone. The proposed amendments in the statement of claim relate to non-workmen and therefore, could not have been permitted in the light of the specific direction of the Supreme Court in its order dated 10th March, 2004.
It is not in dispute that the decision of the Division Bench in Appeal No. 602 of 2005 (supra) has attained finality and was not challenged by the appellants.
8. In the back ground of the above facts, if one considers the contentions sought to be raised in the matter, it is apparent that the issue which is sought to be raised by way of amendment in the present proceedings was also the subject-matter of the earlier proceedings. The Apex Court while disposing the matter in Mukand's case, in no uncertain terms had negatived the claim that there is 'community of interest' between the workmen and the non-workmen and the finding of the High Court in that regard was based on misconstruction of evidence and disregard to vital facts. The Apex Court therefore had answered the finding in that regard in favour of the management. While holding so, the Apex Court had also observed that the Division Bench of this Court had ignored the cumulative effect of the settlement of 1989 and 1995 which were concluded between the parties without prejudice to their respective rights and contentions on the status of the employees under the Act. Evidently, the question as to whether the employers were estopped by their conduct was squarely placed in issue in the earlier round of proceedings before the Apex Court. Obviously therefore, the issues which are sought to be raised in relation to estoppel and community of interest by way of the proposed amendment between the parties had been finally settled and stand concluded by the decision of the Apex Court in Mukand's case.
9. It is, however, sought to be contended on behalf of the appellants that the decision of the Apex Court is only on the point that the findings by the courts below in relation to the evidence pertaining to the issues on community of interest and estoppel were based on misconstruction of evidence and disregard of vital facts and not on the point that the appellants are not entitled for relief based on the said two issues. We are unable to accept this contention. The decision of the Apex Court is very clear on the point that the appellants had failed to establish their case on both the issues and once such a finding has been arrived at by the Apex Court on consideration of the materials on record, it is to be understood that the decision on those issues has attained finality and it is not open for the parties to raise the same point again and again. In fact, this has been well clarified by the Division Bench of this Court in Appeal No. 602 of 2005 (supra) when it was observed that since the amendment relates to the claim of non-workmen, same cannot be allowed to be agitated in view of the specific directions by the Apex Court in the said decision i.e., in Mukand's case.
10. The learned Advocate appearing for the appellants, however, has strenuously argued that the Apex Court in Mukand's case having held that there was no pleading on both the issues, the courts below were not empowered to adjudicate upon the said issues, and the ruling being only in relation to the findings being based on misconstruction of the evidence, that would not forbid the appellants from raising the said issues in the present proceedings. We are not at all persuaded with this contention on behalf of the appellants. It is true that the Apex Court in Mukand's case has held that the Division Bench had erred in holding that there was community of interest between the workmen and the non-workmen and holding further that the workmen could raise the dispute regarding the service conditions of the non-workmen and further that the said finding was in the absence of any pleading regarding the community of interest and therefore, fallacious. At the same time, it is pertinent to note that the Apex Court after arriving at the said finding and on consideration of the arguments advanced on behalf of the parties and on the basis of the materials on record proceeded to consider whether the parties had made out a case in relation to both the issues and arrived at clear findings as stated above and held that the non-workmen cannot be given the status and the protection available to the workmen under the Act. The para 60 of the said decision reads thus:
60. The above submission of learned Counsel for the appellant is well-founded under the Act. Disputes can be raised only by the workmen with the employer. The workmen, however, can in appropriate cases espouse the cause of non-workmen if there is community of interest between the workmen and the non-workmen. In the instant case, it is an admitted fact that the community of interest or estoppel has never been pleaded and the findings rendered by the High Court on this issue is in the absence of pleadings. If the non-workmen are given the status and protection available to the workmen, it would mean that the entire machinery and procedure of the Act would apply to the non-workmen with regard to their employment/non-employment, the terms of employment, the conditions of labour etc. This would cast on the appellant-Company the onerous burden of compliance with the provisions of the Act in respect of the non-workmen. In our view, the situation is not envisaged by the Act which is solely designed to protect the interests of the workmen as desired in Section 2(s) of the Act. Estimation/Computation of the total wage packet, which is a vital task in wage adjudication, has not been done by any of the courts below.
11. Considering the said decision of the Apex Court, therefore, in our considered opinion, no fault can be found with the impugned order.
12. The decisions sought to be relied upon are of no help to the appellants to canvas the contention regarding the non-applicability of the principle of res judicata in labour proceedings.
13. In Hindustan Lever's case (supra), attention was drawn to para 26 thereof while contending that the Apex Court had held that the principle of res judicata is not strictly applicable to industrial arbitration. The relevant observation by the Apex Court in the said para 26 reads thus:
In the reference from which the present appeal arises, the employer contended that there is no such concluded agreement as pleaded by the union, and therefore, the issue that arises is: Whether there is such an agreement as pleaded on behalf of the union. But that was the specific issue in reference I.D. No. 46 of 1966 between the same parties. To that extent, one can say that unless change of circumstances are established, the issue would be res judicata. But we consider it inappropriate to usher in this technical concept of res judicata pervading the field of civil justice in to the field of industrial arbitration. The apprehension was voiced by this Court in Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. Shahdara (Delhi) Saharanpur railway Workers Union 1969-I L.L.J. 734 at 742, when it said that it is doubtful whether the principles analogous to res judicata can properly be applied to industrial adjudication. We are not unaware of the legal position that principles of res judicata was invoked and applied by this Court in Workmen v. Straw Board Manufacturing Co. Ltd. 1974-I L.L.J. 499. One can safely say that principle analogous to res judicata can be availed of to scuttle any attempt at raising industrial disputes repeatedly in defiance of operative settlements and award. But this highly technical concept of civil justice may be kept in precise confined limits in the field of industrial arbitration which must as far as possible be kept free from such technicalities which the wart resolution of industrial disputes. We however proceed on the assumption that an industrial dispute may be rejected on the principle analogous to res judicata.
14. Undoubtedly, the subsequent observations by the Apex Court were also specifically read out by the learned Advocate appearing for the appellants in support of the contention about the non-applicability of the principle of res judicata to the industrial dispute. However, the ruling of the Apex Court in Hindustan Lever's case rather than supporting the contention on behalf of the appellants, it compels us to take the view that the Apex Court has nowhere held that the principle analogous to res judicata is not applicable to the industrial adjudications or labour proceedings. On the contrary, it was specifically applied in Straw Board Manufacturing Co. Ltd. 1974-I L.L.J. 499. What the Apex Court has held in the Hindustan Lever's case is that though the Court should be slow in applying the said principle to the industrial proceedings, it should not hesitate to apply the same when it is seen that attempt is made to raise similar dispute repeatedly in defiance of operative settlement and awards. Once it is clear that the issue which is sought to be agitated was raised earlier and was adjudicated upto the stage of the Apex Court and there has been a decision of the Apex Court on the issue between the same parties, one cannot be allowed to re-agitate the same issue again and again as it would virtually result in nullifying the effect of the decision of the highest Court on the issue or dispute between the parties. No encouragement can be given to the litigants to raise the same issue again and again in spite of the fact that the Apex Court has finally ruled on such issue, and neither the workmen nor the management can be exception to this rule.
15. In Isher Singh's case (supra), it was held that:
The point that is raised in this appeal is really not so much as to the scope of a plea of res judicata and the law bearing upon it, but merely the application of well-settled principles to the facts of the case. The main submission of Mr. Bishan Narain - learned Counsel for the appellant was that the issue as regards the relationship of the respondents to the deceased - Jati as his collaterals was not, "a matter directly and substantially in issue" in the former suit. Obviously, this question has to be decided (a) on the pleadings in the former suit, (b) the issues struck therein, and (c) the decision in the suit.
Referring to this ruling, it was sought to be contended that since in the earlier proceedings, there was no pleading on the points of estoppel and community of interest, the ruling of the Apex Court cannot be construed as res judicata in the matter in hand. The contention cannot be accepted for more than one reason. It is true that in the earlier proceedings there were no pleadings on those points. However, the Apex Court after considering the matter on merits has clearly held, as observed above, that non-workmen cannot be given the status and protection available to the workmen under the Act. The Apex Court has clearly held that the findings of the Court below on the point of community of interest was based on misconstruction of evidence and in disregard to the vital facts. The result of this ruling of the Apex Court is that the appellants had failed to establish their case in relation to the claim of community of interest and estoppel. Being so, the said issues have attained finality, as stated above. That apart, the decision in Isher Singh's case was on the applicability of the principle of res judicata in the facts and circumstances of the case before the Apex Court. It was not in a case wherein in the earlier proceedings, the Apex Court on consideration of the merits of the case had arrived at the final finding on the dispute between the parties. Merely on account of absence of pleadings, it can be held that the point had not been finally decided, in the face of clear decision of the Apex Court on the relevant issue. Being so, the decision is of no help to the appellants in the case in hand.
16. For the reasons stated above, therefore, we do not find any case being made out for interference in the impugned order. Hence the appeal fails and is hereby dismissed. No order as to costs.