Thiagarajan G. Alias Rajan Gopal, ... vs J.B. Engineering Works And Anr.
2002 Latest Caselaw 212 Bom

JUDGMENT

1. This Appeal is filed against an order dated April 24, 2001 passed by the learned single Judge dismissing Writ Petition No. 1715 of 1999.

2. The appellant was in the employment of respondent No. 1. It was his case that his services were wrongly terminated. He, therefore, invoked the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") and a reference was made by appropriate Government to the Labour Court, being Reference (IDA) No. 584 of 1991. During the pendency of the reference, the appellant made an application under Section (2) of Section 33-C of the Act, being Application (IDA) No. 169 of 1992. The said application came up for hearing before the 6th Labour Court, Bombay. A preliminary objection was raised on behalf of the employer that the applicant was not a workman within the meaning of the Act, and, hence, the application filed by him, under Section 33-C(2) was not maintainable. On the basis of the objection raised by the employer, an issue was framed by the Labour Court whether the applicant could be said to be workman as defined in the Act.

3. After appreciating the material on record, the 6th Labour Court, vide an order dated September 13, 1994, held that the applicant was Supervisor, and, hence, could not be said to be workman as defined in Section 2(s) of the Act. The application was, hence, dismissed.

4. Aggrieved by the said order, the appellant approached this Court by filing Writ Petition No. 564 of 1995. The said petition came up for hearing before the learned single Judge and on April 3, 1995, the following order was passed:

"Mr. Deshpande, learned advocate for the petitioner, states that he has received instructions from the Petitioner who is present in the Court to withdraw the Petition as the Petition has been settled out of Court, Mr. Parekh, the learned counsel for the Company, states that the entire matter has

been settled out of Court and he has no objection to the Petitioner withdrawing the writ petition. Permission granted. Writ petition accordingly rejected."

5. Meanwhile, the Reference came up for consideration before the First Labour Court, Bombay, which was registered as Reference (IDA) No. 584 of 1991. The first respondent herein raised a preliminary contention that in view of the finding recorded by the 6th Labour Court, Bombay, in an application under Section 33-C(2) of the Act, that the applicant could not be said to be workman and against the said order a Petition was filed by the applicant, which was withdrawn, the doctrine of res judicata would apply. It was thereafter not open to the Labour Court to adjudicate the matter. The first Labour Court upheld the said contention and rejected the Reference observing that the finding recorded in Application (IDA) No. 169 of 1992 would operate as res judicata and, accordingly, the Reference was dismissed on November 12, 1998. Against the said order, the appellant petitioner approached this Court by filing Writ Petition No. 1715 of 1999, and the learned single Judge upheld the award made by the Labour Court and dismissed the Petition on April 24, 2001.

6. We have heard Mr. Thiagarajan, appellant, party-in-person, as well as the learned counsel for respondent No. 1, it was strenuously argued by the appellant, party-in-person, that the petition filed by him was not withdrawn, but it was rejected by the Court. Reading the order passed by the learned single Judge of this Court in the earlier Petition, it is clear to us that a prayer was made on behalf of the learned counsel for the appellant, who was appearing in the matter, to permit him to withdraw the Petition on the ground that the matter had been settled between the parties. On the basis of the prayer, the Court stated, "Permission granted". It was then stated, "Writ Petition accordingly rejected". In our opinion, therefore, it cannot be said that the petitioner did not withdraw the Petition but it

was rejected by the Court. A prayer for withdrawal of the Petition was made, and it was accepted by the Court since the learned counsel for the petitioner, under the instructions of the petitioner, wanted to withdraw the petition. The prayer was granted and the petition was rejected. The fact, however, is that it was rejected as withdrawn. If it is so, in our opinion, the Labour Court was right in holding that the earlier finding recorded by the competent Court would operate as res judicata, and by dismissing the Writ Petition, the learned single Judge has not committed either an error of law or jurisdiction.

7. It is, no doubt, contended by the appellant that the earlier Court was not a Court of competent Jurisdiction, and hence, a finding recorded by it would not operate as res judicata. In our opinion, the contention cannot be upheld. It was the appellant who had gone to the Court, a finding was recorded that he was not a workman, the said finding was challenged by the appellant by filing a Writ Petition and even that Petition was also withdrawn. In view of these facts, the learned single Judge was right in dismissing the petition.

8. It was also urged that the doctrine of res judicata would not apply to Industrial adjudication. The appellant also not submitted that the Industrial Disputes Act is a social and beneficial piece of legislation. There are no two opinions about it. The technical doctrine of res judicata, as reflected in Section 11 of the Code

of Civil Procedure, 1908, would not stricto sensu apply to industrial adjudication. At the same time, however, the rule analogous would apply to all adjudications, including industrial adjudication. The point has been finally decided by the Supreme Court (vide Bombay Gas Co. v Jagannath Pandurang Punjab Co-operative Bank Ltd. v. Bhatia, .

9. Finally, it was submitted by the appellant that respondent No. 1 has also not acted as per the compromise said to have been arrived at between the parties, on the basis of which, earlier Petition was withdrawn on April 3, 1995. We express no opinion on that point. If it is open to the appellant to take proceedings, he can do so. So far as the finding recorded by the first Labour Court and confirmed by the learned single Judge is concerned in our opinion, the same is in consonance with law, and does not deserve interference. The appeal is, therefore, summarily dismissed.

10. Even at this stage, the learned counsel for the respondent No. 1 stated, as was stated before the learned single Judge, that respondent No. 1 employer is prepared to pay an amount of Rs. 45,000/- which offer as made but was not accepted by the appellant-petitioner, party in person, before the learned single Judge. Even before us also, he refused to accept the said amount.