Full Judgment Text
2024:BHC-AS:1567-DB
WP 5295 OF 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5295 OF 2023
Rajendra Tribhuvandas Navare,
Age 67 years, Address R/o 37,
Telegraph Society, Vijapur Road,
Solapur, Maharashtra … PETITIONER
versus
1. Solapur Municipal Corporation,
Indrabhavan, Solapur.
2. The Commissioner, Indrabhavan,
Solapur Municipal Corporation
3. Transport Administrator,
Transport Department,
Rajendra Chowk Depot,
Ravivar Peth, Solapur.
4. Health Engineer,
Public Health, Water Supply
Department, Indrabhavan, Solapur … RESPONDENTS
Ms. Gayatri Singh, Senior Advocate with Ms. Shreya Kohapatra i/by Mr.
V.G.Sreeram, for Petitioner.
Mr. Sameer Kumbhakoni, for Respondent Nos.1 and 2.
Mr. Vijay Killedar, for Respondent No.3.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 18 AUGUST 2023
PRONOUNCED ON : 12 JANUARY 2024
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the learned
Counsel for the parties, heard finally.
SSP 1/19
WP 5295 OF 2023.doc
2. The Petitioner, a retired daily wager, who was employed with Solapur
Municipal Corporation – Respondent No.1, has assailed the legality, propriety and
correctness of a judgment and order dated 17 January 2022 passed by the learned
Member, Industrial Court, Solapur in Complaint (ULP) No.15 of 2016, whereby the
complaint came to be dismissed on the ground that it was barred by principle of res-
judicata.
3. The background facts leading to this Petition can be stated, in brief, as
under :
3.1 The Petitioner was appointed as peon on daily wages on 3 September
1992 in the office of the Transport Administrator – Respondent No.3. In the year 2010
the Petitioner was transferred to the office of Health Engineer, Public Health and
Water Supply Department – Respondent No.4, a department of Solapur Municipal
Corporation. On 10 February 2016, the Petitioner was transferred back to the
Transport department. The Petitioner stood retired on 29 February 2016.
3.2 A week prior to the retirement, the Petitioner filed a complaint (ULP)
No.15 of 2016 alleging unfair labour practices under Items 5, 6, 9 and 10 of Schedule
IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971 (the Act, 1971) before the Industrial Court at Solapur.
3.3 The substance of the complaint of the Petitioner was that the Petitioner
had completed 240 days of service with the Transport Department in the year 1998
SSP 2/19
WP 5295 OF 2023.doc
itself. Yet, despite having rendered 23 years of continuous and uninterrupted service,
the Petitioner was made to retire as a daily wager only. The Respondents availed
services of the Petitioner as a temporary workman for years together with the object of
depriving him of the status and privileges of a permanent employee. In the process,
the Respondents also indulged in invidious discrimination amongst the employees by
depriving the Petitioner of the benefits, which were extended to other similarly
situated employees.
3.4 It was specifically alleged that the Petitioner was deprived of the
remuneration which was admissible to the post of Peon under awards and the
recommendations of the Pay Commissions. Thus, there was failure to implement
award and settlements. By exploiting the vulnerable position of the Petitioner, the
Respondents also indulged in acts of force and compelled him to work for a meager
remuneration for 23 years. There was a breach of principle of equal pay for equal work
also. The Petitioner, thus, prayed for grant of permanency with all consequential
benefits with retrospective effect, grant him pay and allowances in terms of the
recommendations of the Pay Commissions with retrospective effect and pay arrears of
pay and allowance and also a declaration that the Respondents had indulged in unfair
labour practices under Items 5, 6, 9 and 10 of Schedule IV of the Act, 1971 and a
direction to them to cease and desist from indulging in those unfair labour practices.
3.5 Written statements were filed on behalf of Respondent Nos.1, 2 and 4,
SSP 3/19
WP 5295 OF 2023.doc
and Respondent No.3. The Respondents contested the claim of the Petitioner. It was,
inter alia, contended that the Petitioner was never appointed as Peon and his status
was that of a daily wager only. It was denied that the Respondents indulged in any
unfair labour practices. Respondent Nos.1, 2 and 4 also contended that the Petitioner
had filed complaint (ULP) No.56 of 2005 for identical reliefs. The said complaint
came to be dismissed by the Industrial Court by a judgment and order dated 21
December 2012 on merits. Therefore, the said decision operated as res-judicata and
the instant complaint was not maintainable.
3.6 The Petitioner led evidence. The Respondents did not adduce any
evidence in the rebuttal. After appraisal of the pleadings and evidence, the learned
Member, Industrial Court, Solapur, was persuaded to dismiss the Complaint,
principally on the ground of bar of res-judicata. The learned Industrial Court, as is
evident from the record, had not framed the issue of res-judicata initially. From the
perusal of the impugned judgment and order, it becomes evident that the learned
Member, Industrial Court considered it appropriate to frame the issue of res-judicata
for the purpose of the determination of the complaint as the parties were extensively
heard on the aspect of bar of res-judicata as well. Thus, while pronouncing the
judgment, the learned Member, Industrial Court, framed the issue of res-judicata as
issue 1A. Having found the said issue was required to be decided in the affirmative
and the complaint was required to be dismissed on the said count alone, the learned
SSP 4/19
WP 5295 OF 2023.doc
Member, Industrial Court did not decide rest of the issues. It was also noted that the
Petitioner was guilty of suppression of facts as the institution of the previous
complaint and the decision thereon were not referred to in the instant complaint.
3.7 Being aggrieved, the complainant has preferred this Petition.
4. I have heard Ms. Gayatri Singh, learned Senior Advocate for the
Petitioner, Mr. Sameer Kumbhakoni, learned Counsel for Respondent Nos.1 and 2 and
Mr. Vijay Killedar, learned Counsel for Respondent No.3. With the assistance of the
learned Counsel for the parties, I have also perused pleadings, evidence and the
documents on record.
5. Ms. Singh submitted that the impugned judgment and order suffers from
a serious procedural error. The learned Member, Industrial Court, had not framed the
issue of res-judicata and the said issue came to be framed at the time of
pronouncement of the judgment. Had the issue been framed before the conclusion of
the trial, the Petitioner would have had an opportunity to adduce evidence and
advance submissions qua the said issue. The framing and determination of the issue at
the stage of the judgment deprived the Petitioner of an efficacious opportunity of
hearing, urged Ms. Singh.
6. Ms. Gayatri Singh would urge the bar of res-judicata was also not
properly appreciated. In the previous complaint, only the issue of permanency was
agitated. The issue of permanency, according to Ms. Singh, was an ongoing industrial
SSP 5/19
WP 5295 OF 2023.doc
dispute. The grant of permanency essentially turns upon the existence of vacancies.
When the vacancies subsequently arise, an employee may become eligible to grant
benefit of permanency. Thus, the Petitioner could not have been non-suited on the
ground that prior to a decade and half, a complaint was lodged and it was dismissed.
7. It was further submitted that in the instant complaint, the Petitioner had
specifically raised a substantial issue of equal pay for equal work. The Petitioner had
alleged that the Respondents indulged in an unfair labour practice in not giving pay
and allowances as were admissible and paid under the award and pay commission
recommendations to similarly circumstanced employees. This part of the complaint
was not at all covered by the decision in complaint ULP No.56 of 2005. In this view of
the matter, according to Ms. Singh, the impugned order deserves to be quashed and
set aside.
8. Mr. Kumbhakoni, learned Counsel for Respondent Nos.1 and 2
submitted that, indisputably, the decision in complaint (ULP) No.56 of 2005 had
attained finality. If the Petitioner was aggrieved by the decision, the only course open
to the Petitioner was to challenge the same. However, without disclosing the said fact,
the Petitioner could not have again instituted a complaint of unfair labour practices.
Thus, the learned Member, Industrial Court, committed no error in dismissing the
complaint on the ground of bar of res-judicata.
9. Mr. Killedar, learned Counsel for Respondent No.3 submitted that it is
SSP 6/19
WP 5295 OF 2023.doc
well recognized that the principle of res-judicata applies to the proceedings before the
industrial adjudicator. The learned Member, Industrial Court was, therefore, fully
justified in holding that the complaint was barred by the principle of res-judicata. Mr.
Killedar took the Court through the pleadings in previous complaint and the judgment
in complaint (ULP) No.56 of 2005 to bolster up the submission that the identical
question was agitated before and decided by, the Industrial Court in Complaint (ULP)
No.56 of 2005.
10. To lend support to the aforesaid submission, Mr. Killedar placed a very
strong reliance on the judgment of the Supreme Court in the case of Chairman and
Managing Director, Fertilisers and Chemicals Travancore Ltd. and Anr. V/s.
General Secretary, Fertilizers and Chemicals Travancore Employees Association
1
and Ors. In the said case, the Supreme Court after adverting to the earlier decisions
of the Supreme Court in the cases of R.C.Tiwari V/s. M.P.State Co-op. Mktg.
2
Federation Ltd. , Pondicherry Khadi and Village Industries Board V/s. P.
3 4
Kulothangan and ZP Engineering Division V/s. Digambara Rao held that the
question as to whether the principle of res judicata defined in Section 11 of Code of
Civil Procedure, 1908 applies to the labour proceedings or not , remains no more res
integra and stands answered by the aforesaid three decisions of Supreme Court.
1 (2019) 11 SCC 323
2 (1997) 5 SCC 125
3 (2004) 1 SCC 68
4 (2004) 8 SCC 262
SSP 7/19
WP 5295 OF 2023.doc
11. Mr. Killedar further submitted that the legality and correctness of the
earlier decision cannot be questioned by instituting a fresh proceeding. Even if it is
assumed that the earlier decision was wrong, yet, till it was set aside, it continued to
operate as res-judicata. To this end, a strong reliance was placed on a decision of the
Supreme Court in the case of J. Kodanda Rami Reddy V/s. State of Andhra
5
Pradesh and Ors. wherein it was held that it is well settled that a decree will be a
nullity only if it is passed by a court usurping a jurisdiction it did not have. But a mere
wrong exercise of jurisdiction or an erroneous decision by a court having jurisdiction,
will not result in a nullity. An order by a competent court, even if erroneous, is
binding, unless it is challenged and set aside by a higher forum.
12. Mr. Killedar further submitted that the rule of res-judicata embodies the
principle of public policy which is an inseparable part of rule of law. Attention of the
Court was invited to the Constitution Bench judgment of the Supreme Court in the
6
case of Daryao and Ors. V/s. State of U.P. and Ors. In the said case, in the context
of the applicability of rule of res-judicata in writ jurisdiction, the Supreme Court
enunciated that it is in the interest of public at large that a finality should be attached
to the binding decisions pronounced by Courts of competent jurisdiction and it is also
in the public interest that individuals should not be vexed twice over with the same
kind of litigation. If these two principles form the foundation of the general rule of res
5 (2011) 1 SCC 197
6 AIR 1961 SC 1457
SSP 8/19
WP 5295 OF 2023.doc
judicata they cannot be treated as irrelevant or inadmissible even in dealing with
fundamental rights in petitions filed under Article 32.
13. It is well established that though the Industrial Court is untethered by
the strict and technical rules prescribed in the Code of Civil Procedure, 1908, and is,
subject to rules that may be made, free to follow such procedure as it may think fit, yet
the general principle of res-judicata applies to the proceedings before the industrial
adjudicator as well. The principle of res-judicata incorporates the underlying public
policy of giving finality to the litigation and preventing a party from being vexed twice
for the same cause. Thus, there can be no quarrel with the proposition that the
principle of res-judicata applies to the proceedings before the Labour and Industrial
Court.
14. In the facts of the case, a pivotal question that warrants consideration is
whether the learned Member, Industrial Court, was justified in non-suiting the
Petitioner in the manner as manifested by the impugned judgment.
15. In the case of Workman of the Straw Board Manufacturing Co. Ltd.
7
V/s. M/s. Straw Board Manufacturing Co. Ltd. a three judge Bench of the
Supreme Court emphasised that though the principle of res-judicata applied with
equal force to the industrial dispute, yet whether a matter in dispute in a subsequent
case had already been directly and substantially in issue between the same parties
7 (1974) 4 SCC 681
SSP 9/19
WP 5295 OF 2023.doc
and the same had been heard and finally decided by the tribunal will be of pertinent
consideration and will have to be determined before holding in a particular case that
the principles of res judicata are attracted. The observations in paragraph 27 read as
under :
“27. It is now well established that, although the entire Civil Procedure
Code is not applicable to industrial adjudication, the principles of res
judicata laid down under section 11 of the Code of Civil Procedure,
however, are applicable, wherever possible, for very good reasons. This is
so since multiplicity of litigation and agitation and re-agitation of the same
dispute at issue between the same employer and his employees will not be
conducive to industrial peace which is the principal object of all labour
legislation bearing on industrial adjudication. But whether a matter in
dispute in a subsequent case had earlier been directly and substantially in
issue between the same parties and the same had been heard and finally
decided by the Tribunal will be of pertinent consideration and will have to
be determined before holding in a particular case that the principles of res
judicata are attracted.” (emphasis supplied)
16. What test should be applied to determine whether the matter which was
contested was directly or substantially in issue or collaterally and incidentally in issue,
was propounded by the Supreme Court in the case of Sajjadanashin Sayed Md. V/s.
8
Musa Dadabhai Ummer wherein it was held that one test is that if the issue was
“necessary” to be decided, it would be treated as directly and substantially in issue as
the judgment was, in fact, based upon such a decision. The other principle is that the
8 (2000) 3 SCC 350
SSP 10/19
WP 5295 OF 2023.doc
issue must be decided on the facts of each case, the material test to be applied being
whether the Court considers the adjudication of the said issue material and essential
for its decision. The Supreme Court further explained the material which ought to be
considered to arrive at such determination. It was held that one has to examine plaint ,
written statement, issues and judgment to find out if the matter was directly or
substantially in issue.
17. The aforesaid pronouncement was followed by the Supreme Court in the
case of Rithwik Energy Generation Pvt. Ltd. V/s. Bangalore Electricity Supply
9
Company Ltd. and Ors. The observations in paragraph 15 reads as under :
“15.In Sajjadanashin Sayed (supra), one of the issues that arose for
consideration was what exactly is an issue which is directly and substantially
in issue, as opposed to being collaterally and incidentally in issue. After
referring to various authorities, both English and American, this Court
ultimately referred to and relied upon Mulla’s Civil Procedure Code (15th
Edition) in which two tests were set out. One test is that if the issue was
“necessary” to be decided for adjudicating on the principal issue, and was
decided, it would be treated as directly and substantially in issue as the
judgment was, in fact, based upon such a decision. The other principle is that
the issue must be decided on the facts of each case, the material test to be
applied being whether the Court considers the adjudication of the said issue
material and essential for its decision.” (emphasis supplied)
18. In the case of Jaswant Singh and Anr. V/s. Custodian of Evacuee
10
Property, New Delhi the Supreme Court had expounded the test to determine
9 (2018) 17 SCC 223
10 (1985) 3 SCC 648
SSP 11/19
WP 5295 OF 2023.doc
whether the subsequent suit is barred by res-judicata. It was observed in paragraph 14
as under :
“14. The main ground urged in support of the above appeal by the
appellants of whom. appellant No. 1, Jaswant Singh is the auction purchaser,
is that the order dated March 28, 1949 passed by the Sub-Judge, Ist Class,
Delhi having become final, it would operate as A a bar to any enquiry into
the application which had been made by the Custodian after the
promulgation of Ordinance No. XII of 1949 and Ordinance No. XXVII of
1949. This ground is based on the principles underlying section 11 of the
Code of Civil Procedure, 1908. That section provides 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 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. Explanation IV to that section provides
that any matter which might or ought to have been made a ground of
defence or attack in such former suit shall be deemed to have been directly
and substantially in issue in such suit. It is well settled that in order to decide
the question whether a subsequent proceeding is barred by res judicata it is
necessary to examine the question with reference to the (i) forum or the
competence of the Court, (ii) parties and their representatives, (iii) matters
in issue, (iv) matters which ought to have been made ground for defence or
attack in the former suit and (v) the final decision……….. A cause of action
for a proceeding has no relation whatever to the defence which may be set
up, nor does it depend upon the character of the relief prayed for by the
plaintiff or the applicant. It refers entirely to the grounds set forth in the
plaint or the application as the case may be as the cause of action or in the
other words to the media upon which the plaintiff or the applicant asks the
court to arrive at a conclusion in his favour. In order that a defence of res
SSP 12/19
WP 5295 OF 2023.doc
judicata may succeed it is necessary to show that not only the cause of action
was the same but also that the plaintiff had an opportunity of getting the
relief which he is now seeking in the former proceedings. The test is
whether the claim in the subsequent suit or proceedings is in fact founded
upon the same cause of action which was the foundation of the former suit
or proceedings.”
19. If the impugned order is tested in the light of the aforesaid position in
law, two features emerge which merit consideration. One, the procedural aspect.
Two, the correct application of principle of res-judicata.
20. Undoubtedly the Industrial Court is not bound by the strict and
technical rules of the Code of Civil Procedure, even in the mater of framing and
determination of the issues. However the fact remains that the Industrial Court had
settled the issues which did not include the issue of res-judicata. The parties led
evidence and the trial in the complaint concluded. At the stage of judgment, the
learned Member, Industrial Court, as is evident from the observations in the
impugned judgment, framed the said issue for the purpose of determination. One gets
an impression that the parties had no opportunity of hearing post the framing of the
said issue.
21. It must, however, be noted that at more than one places in the impugned
judgment, the learned Member, Industrial Court, has observed that the parties were
extensively heard on the issue of res-judicata and even the complainant had adverted
SSP 13/19
WP 5295 OF 2023.doc
to the same in his written submissions. There is no reason to doubt these observations
of the learned Member in the impugned judgment and the Court must proceed on the
premise that these facts did transpire. I am also conscious of the proposition that mere
failure to frame an issue, when the parties knew what was the real question in
controversy and adduced evidence and/or advanced submissions may not by itself be
a ground to interfere with the determination, unless such course has resulted in
miscarriage of justice. However, the element of prejudice in not framing the issue
before the delivery of the judgment also cannot be lost sight of.
22. Res-judicata is a mixed question of law and facts. The pleadings, issues
and judgment in the former proceedings need to be examined arriving at the
conclusion whether the issue had been directly or substantially issue in the former
proceedings. Therefore, had the issue been framed at an anterior point of time, the
parties would have been better equipped to address the same.
23. Now, the second aspect of application of principle of res-judicata.
Whether the entire claim in the subsequent complaint was covered by the judgment in
complaint (ULP) No.56 of 2005 so as to preclude the complainant from agitating the
same. The instant complaint contains a two fold grievance. One, the denial of
permanency. Two, denial of pay and allowances in terms of the applicable award and
recommendations of the pay commission. It is alleged, there was a breach of equal pay
for equal work.
SSP 14/19
WP 5295 OF 2023.doc
24. I have perused the complaint in Complaint (ULP) No.56 of 2005
(former Complaint) and the judgment passed therein. Undoubtedly, the Petitioner
was one of the workmen on whose behalf the Union had filed the said complaint.
However, the primal grievance in the said complaint that was agitated and adjudicated
was, denial of permanency. The learned Member, Industrial Court, in the former
complaint, in terms observed that the workmen were not entitled to the benefit of
permanency unless it could be shown that their appointments were in conformity with
the rules and there were permanent sanctioned vacant posts. Having found that
neither the appointment were made in conformity with the rules regulating the
appointment, nor permanent vacant posts were available, it was held that the
complainants were not entitled to permanency.
25. What is of material significance is what was not decided by the Industrial
Court in Complaint (ULP) No.56 of 2005. The following observations in para 31 of
the judgment in Complaint (ULP) No.56 of 2005 deserve extraction. They read as
under :
“31. The evidence of Mr. Prakash Giri (CW-1) suggests that the daily
wagers and badli employees are doing work along with permanent employees
and nature of their work is same. He also admitted that the wages of
permanent employees and others are different and the temporary employees
and badli employees are not getting service benefits at the par with
permanent employees. However, it is neither case nor evidence of
complainant’s side that these affected employees i.e. complainants are
receiving less wages than permanent employees. The claim of complainants
SSP 15/19
WP 5295 OF 2023.doc
is not based on the principle of equal work equal pay. If complainants are
receiving less wages than permanent employees, they can claim same from
management, however, on this ground they cannot claim right of
permanency for above stated reasons. Particularly, their appointments were
not made by following due process of selection and no sanctioned posts or
vacancy exist.”
26. The aforesaid observations would indicate that in the previous
complaint, the learned Member, Industrial Court, had not adjudicated the question as
to whether there was discrimination amongst the workmen, there was breach of
principle for equal pay for equal work or whether the affected workmen were entitled
to the similar /identical dispensation. On the contrary, the learned Member held that
if the grievance of the workmen was that they were receiving wages less than those
paid to the permanent employees, they could claim the same.
27. Secondly, the claim for permanency is dynamic. Existence of permanent
vacancies in its very nature cannot be a static feature. It also has a personal element.
It is imperative to note that even during the pendency of the former Complaint, the
co-employees of the Petitioner (Sr.No.6, 16, 17, 20, 21, 22 and 23 of Schedule A) were
made permanent. These elements do not seem to have been examined.
28. A substantial part of the allegations in the instant complaint revolves
around the alleged non-payment of salary and allowances in terms of the governing
award and pay commission recommendations as well as on the principle of equal pay
SSP 16/19
WP 5295 OF 2023.doc
for equal work. The complainant specifically prayed for payment of salary and
allowances in terms of the recommendations of the pay commission and grant of
arrears of differential pay since the year 1996. Whether the judgment in Complaint
(ULP) No.56 of 2005 operated as a constructive res-judicata even with regard to those
prayers has not been addressed.
29. In the aforesaid view of the matter, the learned Member, Industrial
Court could not have dismissed the complaint in the manner in which it was dismissed
by determining the issue of res-judicata alone, without rendering findings on rest of
the issues.
30. I am, therefore, inclined to hold that the complaint deserves afresh
determination, including on the issue of res-judicata, by the Industrial Court. The
Court cannot be oblivious to the plight of a daily wager who had retired after putting
23 years of service. In my considered view, it would be expedient in the interest of
justice to afford an opportunity to the Petitioner to get his grievance adjudicated by the
industrial adjudicator.
31. For the foregoing reasons, the Writ Petition deserves to be partly
allowed.
32. Hence, the following order :
ORDER
(i) The Petition stands partly allowed.
SSP 17/19
WP 5295 OF 2023.doc
(ii) The impugned judgment and order dated 17 January 2022 stands
quashed and set aside.
(iii) Complaint (ULP) No.15 of 2016 is restored to the file of the
learned Member, Industrial Court at Solapur.
(iv) The learned Member, Industrial Court, Solapur, is requested to
decide the said Complaint afresh after providing an opportunity of hearing to the
parties concerned as expeditiously as possible.
(v) By way of abundant caution, it is clarified that this Court may not
be construed to have expressed any opinion on the merits of the matter, including the
applicability of the bar of res-judicata. All questions including, the bar of res-judicata
and constructive res-judicata, are expressly kept open for consideration and the
learned Member, Industrial Court shall not be influenced by any of the observations
made hereinabove which were confined to test the legality, propriety and correctness
of the impugned order.
(vi) Rule is made absolute to the aforesaid extent.
(vii) In the circumstances, there shall be no order as to costs.
( N.J.JAMADAR, J. )
32 At this stage, learned Counsel for Respondent Nos.1 and 2 seeks stay.
33. Having regard to the fact that the learned Member, Industrial Court had
SSP 18/19
WP 5295 OF 2023.doc
dismissed the complaint on the ground of bar of res-judicata and this Court has set
aside the said order and directed the determination of the complaint afresh, it may be
expedient to stay the effect and operation of this order for a period of four weeks.
34. Ordered accordingly.
( N.J.JAMADAR, J. )
SSP 19/19
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 12/01/2024 20:24:25