Madras High Court
P.Selvaraj vs The Presiding Officer on 10 January, 2011
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 10/01/2011 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.5670 of 2005 1.P.Selvaraj 2.N.Raghavan 3.S.M.Mohan 4.S.Arunachalam 5.N.Sasikumar 6.K.A.Kobakumar 7.A.K.Muralithiran 8.R.Gopalakrishnan 9.S.Devaraj 10.M.Kumaradoss 11.K.Parameswaran 12.R.Iyappan 13.P.Esakki Neelan Nadar 14.R.Rajendran 15.P.Selvamani 16.V.Veludoss 17.T.Raju 18.T.Soman 19.C.Justin Samuvel 20.A.Rajamani 21.R.Ragunathan 22.T.Barnabas 23.V.Rajaretnamani 24.P.Thomas 25.T.Iyyasami 26.P.Krishnapillai 27.R.Thirumal 28.K.Chellappa 29.G.Rethinasingamani 30.A.Padmanabapillai 31.S.Archana Pandian 32.P.Thangavel .. Petitioner Versus 1.The Presiding Officer, Labour Court, Tirunelveli-2. 2.The Management, TAC Floor Co., Ammandivilai, Kanyakumari District. .. Respondents Prayer This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, to call for the records in I.A.No.113 of 2003 in I.D.No.55 to 89 of 2000 on the file of the 1st respondent, to quash the order made in I.A.No.113 of 2003 in I.D.No.55 to 89 of 2000 on the file of the 1st respondent, dated 29.09.2004, direct the 1st respondent to take up the I.D.No.55 to 89 of 2000 on file and dispose them in accordance with law. !For Petitioners ... Mr.M.V.Venkataseshan ^For Respondents ... M/s.King and Partridge :ORDER
The petitioners, numbering 32, claiming themselves to be the permanent workers of TAC Floor Co., Ammandivilai, Kanyakumari District, 2nd Respondent, which is an unit of Alleppy Co., Ltd., at Alleppy in Kerala State and having its factory in Kanyakumari District, have preferred the Writ Petition, for a Writ of Certiorarified Mandamus, to quash the order made in l.A.Nos.113/03 in I.D.Nos.55 to 89/2000 on the file of the Labour Court, Tiruchirapalli, 1st Respondent, dated 29.9.2004 and consequently, prayed for a direction to the Labour Court to take up I.D.Nos.55 to 89/2000 on its file and to dispose them, in accordance with law.
2. It is the case of the petitioners that during 1981-82, the 2nd Respondent Company leased out a portion of the factory i.e., excluding Matloom Section, to William Goodacre & Sons Ltd., which is a sister concern of the 2nd Respondent, for a period of 5 years. According to them, both the companies were under one management, but for record purpose, they were shown as two different entities. Though a lease was stated to have been given to William Goodacre & Sons Ltd., for five years, the real purpose of the lease was to retrench the workers of the 2nd Respondent-company and even after the lease, the 2nd Respondent continued to manage the company.
3. According to the petitioners, the workers of the 2nd respondent were retrenched under Section 25-FF of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act") from 1.4.1982 on the ground that they could not secure orders for the products and it was not economically viable to run the factory and many of the workers, including the petitioners, bonafidely believed the stand taken by the 2nd Respondent and received retrenchment compensation paid under Section 25-FF of the Act.
4. It is the further case of the petitioners that there was one union, by name, "TAC floor Co., Thozhilalargal Sangam, Ammandivilai" and they have withdrawn their membership from that Sangam, after receiving the compensation. The petitioners are not the members of that Union since 1981. Aggrieved over the retrenchment, an Industrial Dispute was raised in I.D.No.38 of 1983, as to whether, denial of employment to 149 workers listed in the annexure to the said I.D., on the plea of leasing out the factory, is justified, if not, to what relief to which the workmen were entitled to. In the said I.D., the Industrial Tribunal has passed an award, upholding the action of the management, rejecting the claim of the Trade Union.
5. Being aggrieved by the same, one Mr.K.Neelakandan and 9 others filed W.P.No.7508/1985 before this Court and by an order, dated 8.11.95, this Court remanded the dispute to the Industrial Tribunal. Against which, the 2nd Respondent and William Goodacre & Sons Ltd., filed, two separate appeals in W.A.Nos.I055/97 and 225/96 and a Division Bench of this Court, by judgment, dated 11.9.1997, allowed the appeals and confirmed the termination of the workers, w.e.f. 4.10.1982.
6. It is the further case of the petitioners that after the expiry of the lease period of 5 years, in the year 1987, the 2nd Respondent got back the possession of the factory and started functioning. Coming to know of the same, the Petitioners and other workers approached the 2nd Respondent and orally requested the Company to give them employment, as per 25-H of the I.D. Act, as they were entitled to claim re-employment under that Section. As their request was not complied with, they raised an Industrial Dispute under Section 2A of the I.D. Act before the Assistant Commissioner of Labour (Conciliation), Nagercoil and the same ended in failure, by submitting a failure report, dated 12.10.99 and therefore, the petitioners have filed individual Industrial Disputes in I.D.Nos.55 to 89 of 2000 under Section 2A of the I.D. Act, before the Presiding Officer, Labour Court, Tirunelveli, 1st Respondent, claiming re- employment, as per Section 25H of the I.D. Act.
7. The petitioners have further submitted that the second respondent has filed a detailed Counter affidavit. Besides, the second respondent also filed application in I.A.No.113/03 in I.D.Nos.55 to 89/2000, raising a preliminary issue, regarding maintainability of the Industrial Disputes, on the ground that the dispute raised was covered by a Division Bench decision of this Court in W.A.No.225/96 and W.A.No.1055/97, dated 11.9.97. It was also contention of the second respondent that the petitioners were terminated only under Section 25 FF of the I.D. Act and not under Section 25 F and therefore, they are not entitled to invoke Section 25 H of the Act. The second respondent has further raised an objection that without any conciliation and failure report, the Industrial Disputes filed by the petitioners, as not maintainable.
8. It is the further case of the petitioners that though they have filed a reply affidavit to the interlocutory applications, contending inter alia that the Labour Court, first respondent has should not consider the objections raised by the second respondent, as a preliminary issue and that the Industrial Disputes have to be adjudicatad by letting in evidence and the preliminary issue, as to whether the earlier judgment in W.A.Nos.225 of 96 and 1055 of 97, reported in 1998 (I) LLJ 1038 (Mad.) [Management of William Goodacre & Sons Ltd., Alleppey and Anr., v. Neelakandan K. & Ors.,], constitute res judicata, the Labour Court, without considering their objections in proper perspective, held that there was severance of employment on transfer and that there was no relationship of employer-employee between the petitioners and the 2nd Respondent. The Labour Court has further held that as the petitioners were terminated under Section 25-FF of the Act, they cannot claim re-employment under Section 25-H of the Act. Accordingly, I.A.No.113/03 was allowed, dismissing I.D.Nos.55 to 89/00, as not maintainable. Being aggrieved by the same, the petitioners have come forward with the present Writ Petition.
9. The impugned order of the first respondent is assailed mainly on three grounds, (1) An error has been committed by the Labour Court, holding that the judgment in Management of William Goodacre & Sons Ltd., Alleppey and Anr., v. Neelakandan K. & Ors., reported in 1998 (I) LLJ 1038 (Mad.), constitutes res judicata and therefore, the disputes were not maintainable.
(2) The Labour Court has erred in holding that the services of the petitioners were terminated, consequent to transfer of undertaking, as per Section 25-FF of the Act and that there exists no relationship of employer- employee between the petitioners and 2nd respondent and therefore, Section 25-H of the Act is not applicable.
(3) The Labour Court has also failed to appreciate decision in Maharashtra General Kamgar Union, Bombay v. Universal Dyeing and Printing Works and Anr., reported in 1997 (2) LLJ 1097 and Govt. of N.C.T. of Delhi v. Hospital Employees Union, Delhi reported in 1997 (II) LLJ 516, where it has been held that Section 25-H is couched in wider language and capable of application to all retrenched workmen, not merely covered by Section 25-F alone.
10. Mr.M.V.Venkataseshan, learned counsel for the petitioners submitted that the cause of action for the present disputes and the point in issue decided earlier, by this Court in Management of William Goodacre & Sons Ltd., Alleppey and Anr., v. Neelakandan K. & Ors., reported in 1998 (I) LLJ 1038 (Mad.), and entirely different and therefore, the principles of res judicata ought not to have been applied to the facts of this case. In this context, he relied on the judgment of the Supreme Court in Central Bank of India v. S.Satyam reported in 1996 (II) LLJ 820 (SC).
11. Per contra, taking this Court through the judgment of this Court made in the abovesaid Writ Appeals in Management of William Goodacre & Sons Ltd., Alleppey and Anr., v. Neelakandan K. & Ors., reported in 1998 (I) LLJ 1038 (Mad.), learned counsel for the second respondent submitted that the issue, raised in the present Writ Petition, has been elaborately dealt with by the Division Bench of this Court in the above reported case, with reference to the statutory provisions, Sections 25-F and 25-FF of the I.D., Act and when the Division Bench had categorically held that the workmen are not entitled to reinstatement with backwages, the present I.D.Nos.55 to 89 of 2000, raised by the petitioners for the very same relief, is barred by the principles of res judicata and that therefore, the Industrial Disputes have been rightly dismissed by the Labour Court, after considering their maintainability, as a preliminary issue raised in I.A.No.13 of 2003, at the instance of the second respondent. He further submitted that as the principles of res judicata are applicable even to Industrial Disputes, the Labour Court has correctly entertained I.A.No.13 of 2003, thus avoiding multiplicity of proceedings and prevented waste of judicial time, in allowing the parties to let in evidence, once again, over the issue, which was concluded earlier, by the Division Bench of this Court.
12. Placing reliance on a decision of this Court in Maruti Udoy Ltd., v. Ram Lal reported in 2005 (I) LLJ 853 = 2005 (6) SCC 638, learned counsel for the second respondent submitted that once Section 25-F would have no application to a case of transfer or closure, as contemplated der Sections 25-FF and 25-FFF, the logical corollary would be that Section 25-H would have no application and that the petitioners have no legal right to seek for reinstatement or backwages with continuity of service. In this context, he also invited the attention of this Court to the relevant paragraphs dealing with the history of the legislation and the applicability of the provisions under the Act and further submitted that when the relationship of employer employee ceases, on account of retrenchment under Sections 25-FF and 25-FFF, by virtue of transfer or closure of undertaking and once, the valid transfer or closure comes into effect, the only remedy to the employee is computation of compensation and that he cannot seek for re-employment.
13. Learned counsel for the second respondent further submitted that the decision rendered in Central Bank of India v. S.Satyam reported in 1996 (II) LLJ 820 (SC), is no longer held good law, in view of the later decision of the Supreme Court, distinguishing as to whether Section 25-F would be applicable to the case of transfer or closure. He further submitted that all the Writ Petitioners have received the compensation and that therefore, no relief of re-instatement with backwages and continuity of service, can be granted.
Heard the learned counsel for the parties and perused the materials available on record.
14. The question as to whether the principles of res judicata is applicable to Industrial Disputes Act is no longer res integra, as the maxim Interest rei publicae ut sit finis litium, founded on a public policy, has been held to have an universal application in Burn and Co. v. The employees reported in AIR 1957 SC 38. In the above reported case, the Supreme Court, at Paragraph 6, held as follows:
"What then is the position? Are we to hold that an award given on a matter in controversy between the parties after full hearing ceases to have any force if either of them repudiates it under section 19(6), and that the Tribunal has no option, when the matter is again referred to it for adjudication, but to proceed to try it de novo, traverse the entire ground once again, and come to a fresh decision. That would be contrary to the well recognised principle that a decision once rendered by a competent authority on a matter is issue between the parties after a full enquiry should not be permitted to be re-agitated. It is on this principle that the rule of res judicata enacted in section 11 of the Civil Procedure Code is based. That section is no doubt, in terms inapplicable to the present matter, but the principle underlying it, expressed in the maxim "interest rei publicae ut sit finis litium", is founded on sound public policy and is of universal application. (Vide Broom's Legal Maxims, Tenth Edition, page 218)."The rule of res judicata is dictated" observed Sir Lawrence Jenkins, C. J. in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh, 43 Ind App 91:[1916] I.L.R. 43 Cal. 694 : AIR 1916 PC 78 (C), "by a wisdom which is for all time"."
15. The above principle has been reiterated in the following decisions in Workmen v. Straw Board Mfg. Co., reported in AIR 1974 SC 1132, Bombay Gas Co. Ltd., v. Jagannath Pandurang reported in 1975 (4) SCC 690 and Bharat Barrel and Drum Mfg. Co., v. Employees Union reported in 1987 (2) SCC
591. The relevant portion from the abovesaid decisions are extracted:
(i) In Workmen v. Straw Board Mfg. Co., reported in AIR 1974 SC 1132, the Supreme Court, at Paragraph 25, held as follows:
"25. 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 CPC, 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."
(ii) In Bombay Gas Co. Ltd., v. Jagannath Pandurang reported in 1975 (4) SCC 690, the Supreme Court, at Paragraph 11, held as follows:
"The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claims. It was observed by this Court in Devilal Modi v. S.T.O., reported in (1965) 16 STC 303.
"The general principles underlying the doctrine of res judicata is ultimately based on considerations of public holiday. One important consideration of public be final, unless they are modified or reversed by appellant authorities; and the twice over, because such a process would be contrary to considerations of fair ply and justice. Vide. Daryao v. State of U.P., reported in AIR 1961 SC 1457.""
(iii) The Supreme Court in Bharat Barrel and Drum Mfg. Co., v. Employees Union reported in 1987 (2) SCC 591, at Paragraph 13, held as follows:
"The question whether a person was or was not an employee under a management after a particular date is one which cannot be re-agitated in a subsequent case in the circumstances of the case if it has already been decided finally by an Industrial Tribunal of competent jurisdiction in an earlier case where the said question necessarily arose for decision. The one and the only ground on which the claim of the workmen for compensation under Section 25-FFF was rejected was that the workmen had ceased to be employees of the appellant by reason of the notice of discharge. The validity of that notice was directly and substantially in issue in the first reference. The workmen did not claim before the first Tribunal the relief of reinstatement or compensation under Section 25-F of the I.D Act even though the factory had been reopened in 1972 before the first award was passed but only confined their relief to compensation under Section 25-FFF of the Act. The award of the first Tribunal became final in absence of any challenge. The workmen could not have, therefore, been permitted to re-agitate the said matter before the second Tribunal which decided the second reference and to contend that they had continued to be employees of the management on the ground that the notice of discharge and the notice of closure were both invalid. The second Tribunal should have rejected the said contentions by holding that the validity of notice of discharge was not open to question before it. The second Tribunal was in error in re-examining the issue relating to the validity of the notice of discharge and in expressing a contrary view. The award by the second Tribunal was, therefore, liable to be quashed."
16. In this context, it is necessary to consider the relief sought for in the earlier I.D.No.38 of 1983 reported in 1998 (I) LLJ 1038 (Mad.) [Management of William Goodacre & Sons Ltd., Alleppey and Anr., v. Neelakandan K. & Ors.,]. The contention of the workmen before the Tribunal was that Tac Floor Company and William Goodacre and Sons Limited. Alleppey were closely interconnected. After a notice under Section 25-FF of the Industrial Disputes Act, the Tac Floor Company had transferred its Unit to William Goodacre and Sons Limited, under an agreement of lease. The services of all the workmen were terminated and one month's notice pay in lieu of backwages was offered. The workmen sent a letter protesting against the alleged transfer of ownership of the company. It was further alleged that there was only a lease in favour of M/s. William Goodacre and Sons Limited and that there was no transfer of ownership of the management and that both the companies were acting in collusion, to put an end to the services of the workmen and in such circumstances, they sought for re-instatement with backwages and continuity of service.
17. Now reverting back to the facts averred in the present Industrial Disputes, there is no difference and that the relief sought for is one and the same, excepting the legal submissions that Section 25-H of the Industrial Disputes Act, is couched in such a wider language and capable of application to all retrenched workmen, not merely covered by Section 25 F alone and also other provisions of 25-FF and 25-FFF of the Act. The issue as to whether the writ petitioners therein were terminated in terms of Section 25-FFF or retrenched, has been considered in detail by the Division Bench of this Court in the above reported judgment at Paragraph 17 and the same is extracted hereunder:
"In this case, after tendering compensation and all retrial benefits and notice pay, the service of 147 workers were terminated. The Industrial Tribunal in the award found that the transfer was bona fide and provisions under Section 25-FF were complied with and the workmen of the transferor-company has no claim barring the right to claim compensation in terms of Section 25-FF and Section 25-F of the Industrial Disputes Act. The above order of the Industrial Tribunal, in our opinion, was correct. In any event, there is no finding that the evidence was not properly considered or parties were not allowed to adduce evidence. In view of the above, remand of the case by the learned single Judge is entirely wrong. Since no infirmity was found out in the award, the learned single Judge, in our opinion, went wrong in remanding the matter. The learned Judge has also omitted to notice that Union did not challenge the award of the Industrial Tribunal, but only 8 persons challenged the award out of 147 employees. Therefore, substantial number of workers have not challenged the award. The award has become final and by remanding the matter, no useful purpose would be served and by remitting the matter, the learned single Judge is only opening a dispute, which was over several years ago. We are fully convinced with the reasonings given by the Industrial Tribunal. There is absolutely no justification for setting aside the award and remanding the matter. The order of the learned single Judge is, therefore, set aside."
18. Reading of the Division Bench judgment makes it abundantly clear that the contention of the petitioners that there was no transfer by the company, raised by the petitioners herein in the second round of litigation in the year 2000 has been considered and answered against the petitioners. Therefore, in the light of the above decisions of the Supreme Court, the contentions of the writ petitioners that the Labour Court has erred in deciding the maintainability of the Industrial Disputes in I.D.Nos.55 to 89 of 2000 as a preliminary issue, cannot be countenanced in law. As the principles of res judicata are applicable to the Industrial Disputes, no manifest illegality has been committed by the Tribunal in deciding as to whether the issues raised and decided in the earlier proceedings and the dispute raised in the Industrial Disputes in I.A.Nos.55 to 89 of 2000, are directly and substantively one and the same. Therefore, the decision of the Labour Court in entertaining I.A.No.13 of 2003, to consider, as to whether I.D.Nos.55 to 89/2000 filed under Section 25-H of the I.D.Act, 1947, seeking re-instatement and backwages, as maintainable or not, as a preliminary issue, cannot be said to be arbitrary or contrary to the legal principles, in view of the decisions, stated supra, regarding the applicability of principles of res-judicata, regarding industrial disputes.
19. As regards the applicability of Section 25-H of the Industrial Disputes Act, in Govt. of N.C.T. of Delhi v. Hospital Employees Union, Delhi reported in 1997 (II) LLJ 516 and Govt. of N.C.T. of Delhi v. Balbir Singh reported in 1997 (II) LLJ 830, the Delhi High Court held that, "The main point to be considered in this case is whether Section 25-H of the Industrial Disputes Act, 1947 would be applicable or not to the workmen who are not covered by Section 25-F of this Act. The point in issue is indicated in the order dated 24th May, 1994 wherein the contention noticed is that where the workman has not served for a year, he is not entitled to retrenchment notice and workman/respondents not having served for one year, they were not entitled to notice of retrenchment on the true import of Section 25. There cannot be any doubt that when workman had not served for a year, he would not be entitled to retrenchment notice under Section 25-F of the Act. The question here, however, is different. It is whether a workman not covered by Section 25-F, is entitled to or not to the benefit of re-employment under Section 25-H of the Act. This point now stands concluded by a decision of Supreme Court in the case of Central Bank of India v. S.Satyam and Others [(1996) II LLJ 820 (SC)], holding that Section 25-H is couched in wide language and is capable of application to all retrenched workmen not merely those covered by Section 25-F. Thus workmen respondents herein cannot be denied benefit of Section 25-H on the ground that they are not covered by Section 25-F. In view of this decision of the Supreme Court the petition is dismissed."
20. In the above decisions, the Delhi High Court has placed reliance on a decision of the Supreme Court in Central Bank of India v. S.Satyam and Others reported in (1996) II LLJ 820 (SC), where, at Paragraphs 6 and 7, the Court held as follows:
"6. On the rival contentions, the real question for decision is: whether the provisions for re-employment of retrenched workmen made in Section 25-H should be confined only to the category of retrenched workmen covered by Section 25-F by restricting the meaning of 'retrenchment' in Section 2(oo) for this purpose? Chapter V-A containing Sections 25-A to 25-J was inserted by Act No. 43 of 1953 with effect from 24.10.1953. This Chapter relates to 'Lay-off and Retrenchment'. Section 25-F prescribes the conditions precedent to retrenchment of workmen. It applies only to the retrenchment of a workman employed in any industry who has been in continuous service for not less than one year and not to any workman who has been in continuous service for less than one year. Section 25-B defines continuous service for the purposes of this Chapter and it says, inter alia, that a workman shall be deemed to be in continuous service under an employer for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than 240 days. In other words, the expression 'continuous service for not less than one year' in Section 25-F has to be so construed by virtue of Section 25-B. The benefit of applicability of Section 25-F can, therefore, be claimed by a workman only if he has been in continuous service for not less than one year as defined in Section 25-B. Any other retrenched workman who does not satisfy this requirement of continuous service for not less than one year cannot avail the benefit of Section 25-F which prescribes the conditions precedent to retrenchment of workman of this category. Section 25-G prescribes the procedure for retrenchment and ordinarily applies the principle of 'last come first go'.
7. Section 25-H then provides for re-employment of retrenched workmen. It says that when the employer proposes to take into his employ any persons, he shall in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re- employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons. Rules 77 and 78 of the Industrial Disputes (Central) Rules, 1957 prescribe the mode of re-employment. Rule 77 requires maintenance of seniority list of all workmen in particular category from which retrenchment is contemplated arranged according to seniority of their service in that category and publication of that list. Rule 78 prescribes the mode of re-employment of retrenched workmen. The requirement in Rule 78 is of notice in the manner prescribed to every one of all the retrenched workmen eligible to be considered for re-employment. Shri Pai contends that Rules 77 and 78 are unworkable unless the application of Section 25-H is confined to the category of retrenched workmen to whom Section 25-F applies. We are unable to accept this contention."
21. In Maharashtra General Kamgar Union, Bombay v. Universal Dyeing and Printing Works and Anr., reported in 1997 (2) LLJ 1097, a Writ Petition was filed by the Worker's Union, challenging an order of dismissal of its complaint by the Industrial Tribunal. The complaint was that the respondent-Company therein, having retrenched the services of 165 workmen in July 1984, restarted its manufacturing activities from September, 1989, without giving any employment to the retrenched workmen and was alleged to have engaged in unfair labour practice. The Industrial Tribunal dismissed the complaint on the ground that it was barred by res judicata, as the question raised had been rejected, in the earlier proceedings before the Labour and Industrial Courts, as well as by a Single Judge and Division Bench of the High Court, in Writ Petition and Appeal respectively. In the above factual background, the Writ Petition filed subsequently, by the Worker's Union, challenging the order of dismissal, was entertained and allowed, holding that what was put in issue, in the said earlier proceedings was only whether the retrenchment was valid or not and whether the retrenched workmen had offered employment as envisaged by Section 25-H of the I.D. Act, was not considered and therefore, the conclusion arrived at by the Industrial Court, in dismissing the earlier complaint on the ground of res judicata was factually incorrect.
22. As stated supra, the issue in the case on hand is directly and substantially the same, i.e, whether the petitioners are entitled to re-instatement with backwages and continuity of service. In the earlier I.Ds., the Industrial Tribunal has held that the transfer was bona fide and the provisions under Section 25-FF have been complied with and therefore, the workmen of the transferor-company has no claim, barring the right to claim only for compensation in terms of Sections 25-FF and 25-F of the Industrial Disputes Act and not re-instatement with backwages and continuity of service.
23. Thus, the issue involved in the earlier proceedings was re-instatement and backwages, which is directly and substantially the same in the later proceedings in I.D.Nos.55 to 89 of 2000. It cannot be contended by the writ petitioners that the question raised in the present proceedings was not even remotely raised and considered in the earlier proceedings, to exclude the application of principles of res-judicata. On the facts of this case, this Court is of the considered view that the application of principles of res- judicata is justified.
24. On the question as to whether, the petitioners were terminated under Section 25-FF of the I.D. Act and not under Section 25-F and whether they are entitled to seek for re-instatement, is answered by the Supreme Court in Maruti Udoy Ltd., v. Ram Lal reported in 2005 (I) LLJ 853 = 2005 (6) SCC 638. In the reported case, the Apex Court, at Paragraphs 21 to 26, held as follows:
"21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression "as if" used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing therefrom. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose.
22. A Constitution Bench of this Court in Hariprasad Shivshankar Shukla v. A.D.Divikar [AIR 1957 SC 121], interpreted the word 'retrenchment' as contained in Section 2(oo) of the ID Act, holding :
"For the reasons given above, we hold, contrary to the view expressed by the Bombay High Court, that retrenchment as defined in Section 2(oo) and as used in Section 25F has no wider meaning than the ordinary, accepted connotation of the word : it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills Ltd. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company...."
23. The history of the legislation has been noticed by a Constitution Bench of this Court in Anakapalle Coop. Agricultural and Industrial Society Ltd. [AIR 1963 SC 1489 = 1962 (II) LLJ 621] and it while holding that a company taking over the management of a closed undertaking may in a given situation become successor-in-interest but as regard the interpretation of the relevant provisions of the 1947 Act following Hariprasad Shivshankar Shukla (supra), opined :
"...The Legislature, however, wanted to provide that though such termination may not be retrenchment technically so-called, as decided by this Court, nevertheless the employees in question whose services are terminated by the transfer of the undertaking should be entitled to compensation, and so, Section 25FF provides that on such termination compensation would be paid to them as if the said termination was retrenchment. The words "as if" bring out the legal distinction between retrenchment defined by Section 2(oo) as it was interpreted by this Court and termination of services consequent upon transfer with which it deals. In other words, the section provides that though termination of services on transfer may not be retrenchment, the workmen concerned are entitled to compensation as if the said termination was retrenchment. This provision has been made for the purpose of calculating the amount of compensation payable to such workmen; rather than provide for the measure of compensation over again, Section 25FF makes a reference to Section 25F for that limited purpose, and, therefore, in ail cases to which Section 25FF applies, the only claim which the employees of the transferred concern can legitimately make is a claim for compensation against their employers. No claim can be made against the transferee of the said concern."
24. The said decision, therefore, is an authority for the proposition that the expression 'as if' has limited application and has been employed only for the purpose of computation of quantum of compensation and takes within its purview a case where retrenchment as contained in Section 2(oo) of the 1947 Act has taken place within the meaning of Section 25F and not in a case tailing under Sections 25FF or 25FFF thereof.
25. Once it is held that Section 25F will have no application in a case of transfer of an undertaking or closure thereof as contemplated in Section 25F and 25FFF of the 1947 Act, the logical corollary would be that in such an event Section 25H will have no application.
26. The aforementioned provisions clearly carve out a distinction that although identical amount of compensation would be required to be paid in all situations but the consequence following retrenchment under Section 25F of the 1947 Act would not extend further so as to envisage the benefit conferred upon a workman in a case falling under Sections 25FF or 25FFF thereof. The distinction is obvious inasmuch as whereas in the case of retrenchment simpliciter a person looses his job as he became surplus and, thus, in the case of revival of chance of employment, is given the preference in case new persons are proposed to be employed by the said undertaking; but in a case of transfer or closure of the undertaking the workman concerned is entitled to receive compensation only. It does not postulate a situation where a workman despite having received the amount of compensation would again have to be offered a job by a person reviving the industry."
25. Extract of Paragraphs 31, 32, 34 and 38 from the above said judgment, are also relevant to understand that in the event of closure, whether the Act contemplates only payment of compensation and not re-instatement of service under Section 25-FF of the Act, "31. In Workmen represented by Akhil Bhartiya Koyla Kamgar Union (supra), the concerned workmen were retrenched by the management of Industry Colliery of Bharat Coking Coal Ltd. on 9.6.1971 owing to operational and financial problems and later on the management was taken over by the Central Government under the Coking Coal Mines (Emergency Provisions) Act, 1971 followed by the Coking Coal Mines (Nationalisation) Act, 1972. Before the said Bench, the decision in Anakapalla Cooperative Agricultural and Industrial Society Ltd. (supra) was referred to but was distinguished on the ground that whereas in Anakapalla Cooperative Agricultural and Industrial Society Ltd. (supra) the provision of Section 25FF was attracted, therein the provision of Section 25F was attracted, stating :
"9. Shri Sinha submitted that as soon as transfer had been effected under Section 25FF of the Act all the employees became entitled to claim compensation and thus those who had been paid such compensation will not be entitled to claim reemployment under Section 25H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is no doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25FF of the Act in the present case. The workmen in question have been retrenched long before the Colliery was taken over the respondents and, therefore, the principles stated in Anakapalle Coop. Agricultural and Industrial Society Ltd. [AIR 1963 SC 1489 = 1962 (II) LLJ 621], in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25F and not under Section 25FF of the Act on transfer of the Colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored."
32. The said decision, therefore, in stead of advancing the case of the Respondents runs counter thereto inasmuch as in the said decision it has been categorically held that Section 25H would come into play only when a retrenchment in terms of Section 25F was made but the said provision would not come into play in a case attracting Section 25FF of the 1947 Act. Unfortunately, before the said Bench of this Court even the amended provisions of Section 17 of the 1972 Act were not brought to its notice.
34. The submission of Mr. Das to the effect that the Parliament having used the words 'every workman' in Section 25FFF, which would include dismissed workmen in view of its definition contained in Section 2(s) of the 1947 Act should be widely interpreted so as to hold that even those workmen who had received compensation would be entitled to the benefit of Section 25H of the 1947 Act, cannot be accepted. Such a construction is not possible keeping in view the statutory scheme of the 1947 Act, Section 25F vis-a-vis Section 25B read with Section 2(oo) of the 1947 Act contemplates a situation where a workman is retrenched from services who had worked for a period of not less than one year on the one hand and those workmen who are covered by Section 25FF and Section 25FFF on the other keeping in view the tact that whereas in the case of the former, a retrenchment takes place, in the latter it does not. The Parliament amended the provisions of the 1947 Act by inserting Section 25FF and Section 25FFF therein by reason of the Industrial Disputes (Amendment Act), 1957 with effect from 28.11.1956, as it was found that having regard to the helpless condition to which workman would be thrown if his services are terminated without payment of compensation and presumably on the ground that if a reasonable compensation is awarded, he may be able to find out an alternative employment within a reasonable time. In the case of closure of an industrial undertaking the Act contemplates payment of compensation alone.
38. The statutory scheme does not envisage that even in the case of closure of an undertaking, a workman who although had not been retrenched would be reemployed in case of revival thereof by another company. If the submission of Mr. Das is accepted, the same would not only run contrary to the statutory scheme but would make the definition of retrenchment contained in Section 2(oo) of the 1947 Act otiose."
26. In view of the above discussion and legal position, it is not open to the petitioners to seek for re-opening of the settled issue by filling fresh Industrial Disputes on the same cause of action, for the very same relief of re-instatement and backwages. There is no manifest illegality in the dismissal of the I.Ds., warranting interference.
27. Hence, the Writ Petition is dismissed. No costs.
skm To The Presiding Officer, Labour Court, Tirunelveli-2.