@JUDGMENTTAG-ORDER
U.C. Banerjee, J.@mdashThis application is directed against an order passed by the 5th Industrial Tribunal being Order No. 40 dated 15th
September, 1982.
2. On 19th January, the Government of West Bengal Labour Department referred the dispute between M/s. Met Industries of 166 Jessore Road,
Calcutta-55 and their workmen represented by E.M.C. Mazdoor Union and Electrical Manufacturing Co. and other workmen Union. The issues
referred to the Industrial Tribunal are as follows:
1. Whether the lockout of the factory with effect from 7th July, 1977 is justified?
2. Whether the closure of the factory with effect from 20th October, 1977 is real -
3. To what relief, if any, are the workmen entitled?
3. After the commencement of the proceeding the Tribunal on 23rd February, 1980 re- fused the prayer of the workmen for leave to be
represented by lawyer. The matter came up before this Court under Article 226 of the Constitution on 24th April, 1981 before P.C. Borooah J.
(as he then was). At the hearing neither the two Unions nor the Company appeared before the learned Judge. The matter was dealt with ex parte
and Borooah J. passed an order, the relevant extract of which is set out herein below:
...The two Unions for reasons best known to the office bearers of the said Unions abandoned the workmen and stopped taking any interest in the
dispute which was referred for adjudications. The workmen who were thus left in a helpless condition should therefore be given an opportunity of
having their case properly represented before the Tribunal. It is nobody''s case that the workmen are literate enough to conduct their own case.
Under the circumstances, I set aside the impugned order and direct the Tribunal to permit a lawyer to represent the case of the petitioners under
the provisions of Section 36 of the Industrial Disputes Act.
The Rule is thus made absolute but without any order as to costs.
4. The order of this Court was duly communicated to the Tribunal. The Company thereafter moved an application before the Tribunal challenging
the locus standi or authority of Sri Jamuna Mistri and 16 others who have claimed themselves to be the workmen of the company and also to be
represented by a lawyer before the Tribunal. The Tribunal interpreted the order as a direction to permit a lawyer to represent the case of the
workmen before it. While dealing with the matter the Tribunal in its order stated:
I grant leave to them to be represented by a lawyer and regarding consent of the other side as required u/s 36 of the Industrial Disputes Act, the
matter cannot be agitated further in view of the clear direction of the Hon''ble High Court upon this Tribunal to permit a lawyer to conduct the case
of Jamuna Mistri and 16 others."" This finding of the Tribunal is under challenge in this petition though the respondents contended that the petition
under consideration is barred under the doctrine of res judicata or constructive res judicata.
5. Considering the nature of the dispute and the points raised, Section 36(4) of the Industrial Disputes Act is to be considered in the proper
perspective with which it was engrafted on the statute book, Section 36(4) provides that in a proceeding before a Labour Court, Tribunal or
National Tribunal, a party to a dispute may be represented by a legal practitioner with the consent of the parties to the proceedings and with the
leave of the Labour Court, Tribunal or National Tribunal as the case may be The language used by the legislature is unambiguous and in my view
on a true and proper interpretation of the provisions of the statute it leaves no manner of doubt that a party to a dispute may be represented by a
lawyer upon the fulfilment of two conditions viz. (1) consent of other party, (2) leave of the Tribunal. These two conditions are not mere matters of
formality to give a full play of the statutory provisions of legal representation. The conditions are mandatory in nature. Consent of the other party is
a requirement which cannot be given a go by. Question of any inference in regard to the consent, as contended, does not and cannot arise. The
requirement is to be complied with in order to give effect to the provisions u/s 36(4). While it is true that silence may sometimes be deemed to be
consent, but in my view, the language used in Section 36(4) does not warrant any such situation. It must be an express consent and not an implied
one. This view finds support in the decision of the Supreme Court in the case of Paradip Port Trust, Paradip Vs. Their Workmen, In that decision
the Supreme Court observed:
The party, however, will have to conform to the conditions laid down in Section 36(4) in the matter of representation by a legal practitioner both
consent of the opposite party and the leave of the tribunal will have to be secured to enable a party to seek representation before the Tribunal
through a legal practitioner. This is the clear significance of Section 36(4) of the Act.
The Supreme Court further observed that it is true that ''and'' in a particular context and in view of the object and purpose of a particular legislation
may be read ''or'' to give effect to the intent of the legislature but having regard to the history of the present legislation, recognition by law of the
unequal strength of the parties in adjudication proceeding before a Tribunal, intention of the law being to discourage representation by legal
practitioner, as such the need for expeditious disposal of cases ""and"" cannot be read as ""or"" in Section 36(4) of the Industrial Disputes Act.
6. Undoubtedly the language used in the order passed by this Court in the earlier matter could have been slightly more expressive. But the intent in
my view does not pose any difficulty. The first part of the sentence ""Direct the Tribunal to permit a lawyer to represent the case of the petitioners
in the order would have to be read in the proper perspective and along with the next part viz. ""under the provisions of Section 36 of the Industrial
Disputes Act."" Reference to Section 36 in the said order in my view has made the position clear and the direction to the Tribunal, as is apparent is
subject to the provisions of Section 36 of the Industrial Disputes Act. ""Direction to Tribunal"" cannot be treated to be an independent direction
dehors the statute. The second part of the sentence viz., ""under the provisions of Section 36 has made the position very clear, true meaning being
that the Tribunal is directed subject to the provisions of Section 36 or the Tribunal is to act in accordance with the provisions of Section 36 in the
matter of permitting a lawyer to represent the case. It is to be noted in this context that the same learned Judge has issued the rule nisi in the matter
under consideration and also passed an interim order of injunction restraining the respondents from proceeding with the matter further till the
disposal of the Rule after having heard both the parties. Though it is true that issuance of rule nisi may not be a very material factor, but in my view
the factum of the issuance of rule nisi and the grant of an order of injunction from further proceeding with the matter before the Tribunal by the
selfsame learned Judge cannot be overlooked absolutely.
7. In that view of the matter, in my view, the Tribunal lias thus committed an error in interpreting the order of this Court. In that view of the matter
the contention that the application is barred under the doctrine of res judicata or constructive res judicata does not and cannot arise. The earlier
order passed by Borooah J. (as he then was) cannot be termed to have decided the issue in the matter under consideration. The learned Judge
passed an order and the Tribunal interpreted it in a particular manner. The writ petitioner not being satisfied with the interpretation has moved this
Court and the view I have taken clearly indicate that the Tribunal was in error in interpreting the order in that manner. But since detailed
submissions were made I feel inclined to express my view in regard to the said issue.
8. The doctrine of res judicata is one of the most salutary principles of law which seeks to protect the protractive and repetitive litigation between
the same parties. A decision once pronounced by an authority competent to pronounce if, on a matter in issue between the parties, after a full
enquiry should not and ought not to be permitted to be reagitated. The statutory provision as contained in S. 11 of the CPC in terms may be
inapplicable but the principle underlying has universal application as the same is barred on considerations of public policy. The Supreme Court in
the case of Burn & Co, v. Their Employees reported in 1957 1 LLJ 226 while dealing with the question in regard to the doctrine of res judicata
has laid down that there are good reasons why this principle should be applicable to the decisions of Industrial Tribunal also. The 1976 amendment
to the Code has introduced explanations (VII) and (VIII) to Section 11 which can in no uncertain terms be said to have been engrafted in the
statute book for the purpose of giving a wider amplitude as it was existing prior to the amendment. In the case of Madan Mohan Damma Mal Ltd.
and Another Vs. The State of West Bengal and Another, . the Supreme Court held that constructive res judicata which is a special and artificial
form of res judicata should not generally be applied to writ petitions filed under Article 32 or Article 226 of the Constitution of India. The decision
of the Supreme Court in Bombay Gas Company v. Jagannath Pandurang reported in 1975-II L.L.J. 345 and Ors. however categorically stated
that the doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the CPC but to all
litigations. It proceeds on the principle that there should not be unnecessary litigations 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. The Supreme Court in
Pandurang''s case also relied upon two earlier decisions of the Supreme Court, viz. Devilal Modi, Proprietor, M/s. Daluram Pannalal Modi Vs.
Sales Tax Officer, Ratlam and Others, and Daryao and Others Vs. The State of U.P. and Others, . The Supreme Court with approval referred the
observation in Devi Lal Modi''s case (supra) that the general principle underlying the doctrine of res judicata is ultimately based on consideration of
public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final
unless they are modified or reversed by the appellate authority; and the other principle is that no one should be made to face the same litigation
twice over, because such a process should be contrary to the consideration of fair play and justice.
9. The same point came up for consideration before the Supreme Court in the case of The Mumbai Kamgar Sabha, Bombay Vs. Abdulbhai
Faizullabhai and Others, wherein the Supreme Court observed that so long as the ruling in Pandurang''s case (supra) stood, the Industrial litigation
is no exception to the general principle underlying the doctrine of res judicata. In that decision however the Supreme Court has expressed its doubt
about the extension of the sophisticated doctrine of constructive res judicata to industrial law which is governed by special methodology of
conciliation, adjudication and consideration of peaceful industrial relations where collective bargaining and pragmatic justice claim precedence over
formalised rules of decision based on individual contests, specific causes of action and findings on particular issues.
10. Subsequently the Supreme Court also considered the doctrine of res judicata in the case of State of U.P. Vs. Nawab Hussain, : where the
general principles of the doctrine had been explicitly laid down by the Hon''ble Supreme Court. The Supreme Court observed: -
The principle of estoppel per res judicata is a rule of evidence. As had been stated in Marginson v. Blackburn Borough Council (1939)2 K.B. 426
it may be said to be ""the broader rule of evidence which prohibits the reassertion of a cause of action"". This doctrine is based on two theories: (i)
The finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of community as a matter of public
policy and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also
a private purpose by obstructing the reopening of matters which have once been adjudicated upon, it is thus not permissible to obtain a second
judgment for the same civil relief on the same cause of action for otherwise the spirit of contentiousness may give rise to conflicting judgments of
equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an
action, and that is why it is necessary for the Courts to recognise that a cause of action which results in a judgment must lost its identity and vitality
and merge in the judgment when pronounced. It cannot therefore survive the judgment or give rise to another cause of action on the same facts.
This is what is known as the general principles of res judicata,
11. The Supreme Court further observed that these simple but efficacious rules of evidence have been recognised for long as appears from the
decision of the Supreme Court in the case of Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), . The Supreme Court observed
that Section 11 of the CPC covers almost the whole field and has admittedly served the purpose of the doctrine but it relates to suits and former
suits and has in terms no direct application to a petition for the issue of a high prerogative. The general principles of res judicata and constructive
res judicata have however been acted upon in case of renewed application for a writ. The Supreme Court referred to the decision of Ex parte
Thompson (1845)6 Q.B. 721 wherein Lord Denman C.J. observed that as Stephen was making an application which had already been refused on
fresh materials he could not have the same application repeated from time to time as they had often refused rules in that ground. The same view lias
been taken in England in respect of renewed petitions for certiorari, quo warranto and prohibition. The Supreme Court concluded by saying that
the position in this country is also the same.
12. From the above enunciation of law it is clear that though res judicata simpliciter is not applicable to writ petitions but the extension of the
doctrine of res judicata which has often been termed as constructive res judicata cannot be said to be of very restrictive in its application, but
covers the entire field of litigation. In a modern society in my view the Courts cannot shut its eyes in regard to the stark realities of life. Judicial
harassment should not be permitted in a civil suit or in a writ petition or in the field of industries. Proverbial saying justice delayed means justice
denied has also a bearing in the matter of applicability of the doctrine of constructive res judicata in writ petition. Litigants should not be permitted
to go on with the litigation on the selfsame issue over and over again. The matter must reach a stage of finality even though Section 11 of the CPC
in terms not applicable in writ matters. In my view considering the purpose for which Industrial Disputes Act has been engrafted in the statute book
and the socio economic conditions of the country it would be positive injustice if the doctrine of constructive res judicata is given a narrower
meaning than is intended to subserve. The doctrine of constructive res judicata ought not and should not be restricted in its applicability.
13. The other contention raised in this application on behalf of the writ petitioner is that the reference itself has become infructuous and the Tribunal
has had no jurisdiction to proceed with the matter any further. Dr. Mukherjee canvassing the same submitted that since the Unions espoused the
cause of the workmen and the order of reference has been made in pursuance thereof question of continuation of the proceedings by a small
section of employees independently of the Union does not and cannot arise.
14. It is true that the scheme of the Industrial Disputes Act does appear to contemplate that the machinery provided therein should be set in motion
to settle only disputes which involve the rights of workmen as a class excepting however the cases governed by Section 2A of the Act. The
importance of collective bargaining cannot be minimised but the said considerations have little bearing in the facts of this case. The issue in the case
under consideration is whether the proceedings initiated by the properly authorised union can be continued by the workmen, though a small
section, since the Agent is not taking any interest in the matter.
15. In my view, the writ Court ought not to take upon itself of adjudicating the same. If the initiation is in accordance with law, the Tribunal
assumes jurisdiction and point under consideration ought to be allowed to be dealt with by the Tribunal as envisaged under the statute. Suffice it to
say however that simply because the seal of the Unions is absent, the writ Court ought not to strike down the order of reference. In this context
reference may be made to the decision of the Supreme Court in the case of The Bombay Union of Journalists and Others Vs. The ''Hindu'',
Bombay and Another, . The other decisions cited in this regard do not have, in my view, any relevance in the facts of the case under consideration.
16. In that view of the matter the order of the Tribunal is set aside and the matter is remitted back to the Tribunal for disposal in the light of the
observations made herein. Since long time has elapsed it is desired that the Tribunal will deal with the matter as expeditiously as possible and
preferably within a period of three months from the date of the communication of this order.
17. The Rule is thus made absolute to the extent indicated above. There will he, however, no order as to costs.
18. Operation of the order is stayed for a period of two weeks as prayed.
Petition partly allowed.
