Two-judge bench allowed and dismissed appeal against single judge order. Bench held Supreme Court in Mukand Ltd case settled estoppel and community of interest issues on merits, barring re-agitation under res judicata analogous to principle.
Appeal dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[1]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.16 OF 2007
IN
WRIT PETITION NO.2516 OF 2006
Mukand Staff & Officers’
Association, "Shramik",
31-Lokmanya Tilak Vasahat,
Cross Road No.3,
Dadar (E), Mumbai-400 018. .... Appellants
- Versus -
M/s. Mukand Ltd.,
Bajaj Bhavan,
Jamnalal Bajaj Marg,
226, Nariman Point,
Mumbai-400 021. .... Respondents
Shri Sanjay Singhavi with Ms Jane Cox for
the Appellants.
Sarvasri P.K. Rele, Senior Advocate with
R.P. Rele and Vinod Tayde, Advocates for
the Respondents.
CORAM: R.M.S. KHANDEPARKAR &
D.G. KARNIK, JJ.
DATED: APRIL 03, 2007
ORAL JUDGMENT (Per R.M.S.Khandeparkar, J.):
1. Heard. Admit. The learned Advocate for the
respondents waives service. By consent, heard
forthwith.
2. This appeal arises from the order dated 15-10-2006
passed in Writ Petition No.2516 of 2006. By the
impugned order, the learned single Judge has allowed the
[2]
writ petition filed by the respondents herein against
the order passed by the Industrial Tribunal on 19-8-2006
whereby the application dated 19-6-2006 filed by the
appellants herein in Reference (IT) No.76 of 2001 was
allowed. The said application was filed by the
appellants seeking to introduce certain pleadings,
particularly on the point of "estoppel" and "community
of interest" between the workmen and the non-workmen
from amongst the monthly rated staff. The learned
single Judge while observing that the question as
regards the community of interest and of estoppel was
specifically the subject matter of the decision of the
Supreme Court in Mukand Ltd. v. Mukand Staff and
Officers’ Association, reported in 2004 I CLR 1062, held
that the appellants by the proposed amendment had sought
to set up the same plea that the respondents herein, who
are the employers, are estopped by their past conduct
from contending that certain members of the monthly
rated staff are not workmen and the second plea to the
effect that there is community of interest between the
workmen at whose behest the reference has been made and
the non-workmen from amongst the monthly rated staff.
The learned single Judge has, therefore, set aside the
order of the Industrial Tribunal and has dismissed the
application for amendment to the extent it relates to
the said two pleas. It is to be noted that the
reference in the case in hand was in relation to demand
[3]
raised by the appellants that for the year 1998-99 all
the members of the association were entitled for bonus
at the rate of 20% in accordance with the Payment of
Bonus Act and as per the custom of payment of bonus to
all the employees including those drawing salary of more
than Rs.3,500/- per month.
3. Learned Advocate for the appellants, placing
reliance in the decisions of the Apex Court in the
matters of The Workmen of M/s. Hindustan Lever Ltd.
and Ors. v. The Management of M/s. Hindustan Lever
Ltd., reported in (1984) I SCC 728 and Isher Singh v.
Sarwan Singh and others, reported in 1966-I S.C.J. 475,
submitted that the learned single Judge failed to
consider that there is no res judicata on the point
which had not been pleaded even if there was a finding
concerning the point in the earlier proceedings. In
that case, at the most, it can be a constructive res
judicata. The issue before the Apex Court in the
earlier decided case was not whether there was estoppel
or community of interest but whether the pleadings and
the evidence on record were sufficient to prove the plea
of estoppel and community of interest. The contentions
are sought to be controverted on behalf of the
respondents.
4. Before considering the rival contentions, it would
[4]
be appropriate to refer to the amendment which is sought
to be introduced in the present proceedings and which
has been disallowed by the learned single Judge. The
same reads thus:
"Estoppel:
The Company in the past, has entered
into various settlements under the
provisions of the I.D. Act, 1947 which
are submitted herewith before this
Hon’ble Tribunal as
Exhibit-A-Collectively.
The Company has made the Industrial
Employment (Standing Orders) Act, 1946
applicable to all its workmen covered
under the reference through a circular
issued by the Managing Director of the
company and accordingly charge sheet
were issued to the workmen in accordance
with the Model Standing Orders framed
under the Act. The same are filed
herewith as Exhibit-B & C Collectively.
The Company has locked out all the staff
covered under the present reference
[5]
under provisions of MRTU & PULP Act,
1971. Copy of lock out notice is at
Exhibit-D.
Whether an employee is a workman or not
is not merely a question of law but a
mixed question of law and fact. The
events herein above and the conduct of
the company clearly go to show that the
company has accepted all the employees
under the reference as "workmen" and
hence they are estopped from contesting
this claim of the workmen.
The Association representing the second
Party states and submits that the first
party company is estopped from claiming
that any of the monthly rated staff are
not workmen. Hence the Hon’ble Tribunal
be pleased to reject every contentions
of the company on these issues.
Community of interest between the
workmen and so-called non-workmen from
monthly rated staff:
It is submitted that even if it is
[6]
assumed without admitting that any of
the monthly rated staff are not workmen,
then too, there is community of interest
between the workmen and such
non-workmen. Workers have a customary
right to get the same benefits, as
non-workmen on the same grade. Whenever
a non-workmen is given a certain benefit
and facility is also given to the
workmen belonging to this same grade and
vice versa. Hence, the workmen are
vitally interested and have a genuine
interest in the wages and benefits of
the non-workmen. Hence it is submitted
that there exists a community of
interest between workmen and non-workmen
on the same grade. Further, many
workmen are promoted to posts which the
company claims are not workmen. Hence
even if any such post is presumed to be
out of the ken of the definition of
workmen, the admitted workmen still are
vitally and genuinely interested in the
wages and benefits paid to such post.
Being members of the same trade union,
espousing the common cause and interests
and having collectively bargained for
[7]
salary revisions and service conditions
and made settlements in the past, there
exists community of interest among the
members, whether workmen or not. Hence
and otherwise also it is submitted that
there is community of interest between
the workmen and non-workmen on the same
grade."
The proposed amendment seeks to set up a plea that the
respondents herein who are the employers are estopped by
their past conduct from contending that certain members
of the monthly rated staff are not workmen. The second
plea that is sought to be advanced is that there is a
community of interest between the workmen at whose
behest the reference has been made and the non-workmen
from amongst the monthly rated staff. In sum and
substance, therefore, two pleas are sought to be
advanced viz. (i) the plea of estoppel and (ii) the
plea that there is community of interest between the
workmen and the non-workmen on whose behalf the claim in
the reference is also sought to be pursued.
5. It will be worthwhile to take note of the amendment
which was proposed to be introduced in the Reference
(IT) No.3 of 1993 by the appellants. That amendment was
sought to be made subsequent to the decision of the Apex
[8]
Court dated 10-3-2004 in Mukand’s case (supra). The
said amendment read thus:
"Estoppel:
The Company, in the past has entered
into various settlements under the
provisions of the ID Act of 1947, which
are on record before this Hon’ble
Tribunal under exhibit U-34.
The Company has made the Industrial
Employment (Standing Orders) Act, 1946
applicable to all its workmen covered
under the reference through a circular
issued by the Managing Director of the
company (U 48 & U 49) and accordingly
charge sheet were issued to the workmen
in accordance with the Model Standing
Orders framed under the Act (U 80,
1-15).
The Company has locked out its workers
covered under the reference under
provisions of MRTU-PULP Act 1971 (U 18).
Whether an employee is a workmen or not
[9]
is not merely a question of law but a
mixed question of law and fact. The
events herein above and the conduct of
the company clearly go to show that the
company has accepted the employees under
the reference as "workmen" and hence
they are estopped from contesting this
claim of the workmen.
The Association representing the second
party states and submits that the first
part company is estopped from claiming
that any of the monthly rated staff are
not workmen.
Community of interests between the
workmen and so-called non-workmen from
monthly rated staff:
It is submitted that even if it is
assumed without admitting that some of
the monthly rated staff are not workmen,
then too, there is community of interest
between the workmen and such
non-workmen. Workers have a customary
right to get the same benefits, as
non-workmen on the same grade. Whenever
[10]
a non-workmen is given a certain benefit
and facility is also given to the
workmen belonging to this same grade and
vice versa. Hence, the workmen are
vitally interested and have a genuine
interest in the wages and benefits of
the non-workmen. Hence it is submitted
that there exists a community of
interest between workmen and non-workmen
on the same grade. Further, many
workmen are promoted to posts which the
company claims are not workmen. Hence
even if any such post is presumed to be
out of the ken of the definition of
workmen, the admitted workmen still are
vitally and genuinely interested in the
wages and benefits paid to such post.
Being members of the same trade union,
espousing the common causes and
interests and having collectively
bargained for salary revisions and
service conditions and made settlements
in the past, there exists community of
interest among the members, whether
workmen or not. Hence and otherwise
also it is submitted that there is
community of interest between the
[11]
workmen and non-workmen on the same
grade."
6. A perusal of the proposed amendment which was
allowed by the Industrial Tribunal and disallowed by the
learned single Judge in the present case and the
comparison thereof with the earlier rejected amendment
would evidently disclose that both are word-to-word
identical. Being so, the finding arrived at by the
learned single Judge that the proposed amendment is the
verbatim copy of the earlier rejected amendment cannot
be found fault with.
7. It is not in dispute that the amendment which was
proposed to be made in the Reference (IT) No.3 of 1993
subsequent to the decision of the Apex Court in Mukand’s
case was rejected by the Industrial Tribunal and the
said order was confirmed by the learned single Judge as
well as by the Division Bench of this Court in Appeal
No.602 of 2005 in Writ Petition No.1525 of 2005 holding
thus:
"4. The Supreme Court in its order
dated March 10, 2004 while remitting the
matter back to the Industrial Tribunal
directed the Industrial tribunal to
adjudicate the claim of the workmen
[12]
alone. The proposed amendments in the
statement of claim relate to non-workmen
and therefore, could not have been
permitted in the light of the specific
direction of the Supreme Court in its
order dated 10th March, 2004."
It is not in dispute that the decision of the Division
Bench in Appeal No.602 of 2005 (supra) has attained
finality and was not challenged by the appellants.
8. In the back ground of the above facts, if one
considers the contentions sought to be raised in the
matter, it is apparent that the issue which is sought to
be raised by way of amendment in the present proceedings
was also the subject-matter of the earlier proceedings.
The Apex Court while disposing the matter in Mukand’s
case, in no uncertain terms had negatived the claim that
there is ‘community of interest’ between the workmen and
the non-workmen and the finding of the High Court in
that regard was based on misconstruction of evidence and
in disregard to vital facts. The Apex Court therefore
had answered the finding in that regard in favour of the
management. While holding so, the Apex Court had also
observed that the Division Bench of this Court had
ignored the cumulative effect of the settlement of 1989
and 1995 which were concluded between the parties
[13]
without prejudice to their respective rights and
contentions on the status of the employees under the
Act. Evidently, the question as to whether the
employers were estopped by their conduct was squarely
placed in issue in the earlier round of proceedings
before the Apex Court. Obviously therefore, the issues
which are sought to be raised in relation to estoppel
and community of interest by way of the proposed
amendment between the parties had been finally settled
and stand concluded by the decision of the Apex Court in
Mukand’s case.
9. It is, however, sought to be contended on behalf of
the appellants that the decision of the Apex Court is
only on the point that the findings by the Courts below
in relation to the evidence pertaining to the issues on
community of interest and estoppel were based on
misconstruction of evidence and disregard of vital facts
and not on the point that the appellants are not
entitled for relief based on the said two issues. We
are unable to accept this contention. The decision of
the Apex Court is very clear on the point that the
appellants had failed to establish their case on both
the issues and once such a finding has been arrived at
by the Apex Court on consideration of the materials on
record, it is to be understood that the decision on
those issues has attained finality and it is not open
[14]
for the parties to raise the same point again and again.
In fact, this has been well clarified by the Division
Bench of this Court in Appeal No.602 of 2005 (supra)
when it was observed that since the amendment relates to
the claim of non-workmen, same cannot be allowed to be
agitated in view of the specific directions by the Apex
Court in the said decision i.e., in Mukand’s case.
10. The learned Advocate appearing for the appellants,
however, has strenuously argued that the Apex Court in
Mukand’s case having held that there was no pleading on
both the issues, the Courts below were not empowered to
adjudicate upon the said issues, and the ruling being
only in relation to the findings being based on
misconstruction of the evidence, that would not forbid
the appellants from raising the said issues in the
present proceedings. We are not at all persuaded with
this contention on behalf of the appellants. It is true
that the Apex Court in Mukand’s case has held that the
Division Bench had erred in holding that there was
community of interest between the workmen and the
non-workmen and holding further that the workmen could
raise the dispute regarding the service conditions of
the non-workmen and further that the said finding was in
the absence of any pleading regarding the community of
interest and therefore, fallacious. At the same time,
it is pertinent to note that the Apex Court after
[15]
arriving at the said finding and on consideration of the
arguments advanced on behalf of the parties and on the
basis of the materials on record proceeded to consider
whether the parties had made out a case in relation to
both the issues and arrived at clear findings as stated
above and held that the non-workmen cannot be given the
status and the protection available to the workmen under
the Act. The para 60 of the said decision reads thus:
"60. The above submission of learned
counsel for the appellant is
well-founded under the Act. Disputes
can be raised only by the workmen with
the employer. The workmen, however, can
in appropriate cases espouse the cause
of non-workmen if there is community of
interest between the workmen and the
non-workmen. In the instant case, it is
an admitted fact that the community of
interest or estoppel has never been
pleaded and the findings rendered by the
High Court on this issue is in the
absence of pleadings. If the
non-workmen are given the status and
protection available to the workmen, it
would mean that the entire machinery and
procedure of the Act would apply to the
[16]
non-workmen with regard to their
employment/non-employment, the terms of
employment, the conditions of labour
etc. This would cast on the
appellant-Company the onerous burden of
compliance with the provisions of the
Act in respect of the non-workmen. In
our view, the situation is not envisaged
by the Act which is solely designed to
protect the interests of the workmen as
desired in S.2(s) of the Act.
Estimation/Computation of the total wage
packet, which is a vital task in wage
adjudication, has not been done by any
of the Courts below."
11. Considering the said decision of the Apex Court,
therefore, in our considered opinion, no fault can be
found with the impugned order.
12. The decisions sought to be relied upon are of no
help to the appellants to canvas the contention
regarding the non-applicability of the principle of res
judicata in labour proceedings.
13. In Hindustan Lever’s case (supra), attention was
drawn to para 26 thereof while contending that the Apex
[17]
Court had held that the principle of res judicata is not
strictly applicable to industrial arbitration. The
relevant observation by the Apex Court in the said para
26 reads thus:
"In the reference from which the present
appeal arises, the employer contended
that there is no such concluded
agreement as pleaded by the union, and
therefore, the issue that arises is:
Whether there is such an agreement as
pleaded on behalf of the union. But
that was the specific issue in reference
I.D. No.46 of 1966 between the same
parties. To that extent, one can say
that unless change of circumstances are
established, the issue would be res
judicata. But we consider it
inappropriate to usher in this technical
concept of res judicata pervading the
field of civil justice in to the field
of industrial arbitration. The
apprehension was voiced by this Court in
Shahdara (Delhi)-Saharanpur Light
Railway Co. Ltd. v. Shahdara
(Delhi)-Saharanpur railway Workers Union
{1969-I L.L.J. 734 at 742}, when it
[18]
said that it is doubtful whether the
principles analogous to res judicata can
properly be applied to industrial
adjudication. We are not unaware of the
legal position that principles of res
judicata was invoked and applied by this
Court in Workmen v. M/s. Straw Board
Manufacturing Co. Ltd. {1974-I L.L.J.
499}. One can safely say that principle
analogous to res judicata can be availed
of to scuttle any attempt at raising
industrial disputes repeatedly in
defiance of operative settlements and
award. But this highly technical
concept of civil justice may be kept in
precise confined limits in the field of
industrial arbitration which must as far
as possible be kept free from such
technicalities which the wart resolution
of industrial disputes. We however
proceed on the assumption that an
industrial dispute may be rejected on
the principle analogous to res
judicata."
14. Undoubtedly, the subsequent observations by the
Apex Court were also specifically read out by the
[19]
learned Advocate appearing for the appellants in support
of the contention about the non-applicability of the
principle of res judicata to the industrial dispute.
However, the ruling of the Apex Court in Hindustan
Lever’s case rather than supporting the contention on
behalf of the appellants, it compels us to take the view
that the Apex Court has nowhere held that the principle
analogous to res judicata is not applicable to the
industrial adjudications or labour proceedings. On the
contrary, it was specifically applied in M/s. Straw
Board Manufacturing Co. Ltd. {1974-I L.L.J. 499}.
What the Apex Court has held in the Hindustan Lever’s
case is that though the Court should be slow in applying
the said principle to the industrial proceedings, it
should not hesitate to apply the same when it is seen
that attempt is made to raise similar dispute repeatedly
in defiance of operative settlement and awards. Once it
is clear that the issue which is sought to be agitated
was raised earlier and was adjudicated upto the stage of
the Apex Court and there has been a decision of the Apex
Court on the issue between the same parties, one cannot
be allowed to re-agitate the same issue again and again
as it would virtually result in nullifying the effect of
the decision of the highest Court on the issue or
dispute between the parties. No encouragement can be
given to the litigants to raise the same issue again and
again in spite of the fact that the Apex Court has
[20]
finally ruled on such issue, and neither the workmen nor
the management can be exception to this rule.
15. In Isher Singh’s case (supra), it was held that:
"The point that is raised in this appeal
is really not so much as to the scope of
a plea of res judicata and the law
bearing upon it, but merely the
application of well-settled principles
to the facts of the case. The main
submission of Mr. Bishan Narain -
learned counsel for the appellant was
that the issue as regards the
relationship of the respondents to the
deceased - Jati as his collaterals was
not, "a matter directly and
substantially in issue" in the former
suit. Obviously, this question has to
be decided (a) on the pleadings in the
former suit, (b) the issues struck
therein, and (c) the decision in the
suit."
Referring to this ruling, it was sought to be contended
that since in the earlier proceedings, there was no
pleading on the points of estoppel and community of
[21]
interest, the ruling of the Apex Court cannot be
construed as res judicata in the matter in hand. The
contention cannot be accepted for more than one reason.
It is true that in the earlier proceedings there were no
pleadings on those points. However, the Apex Court
after considering the matter on merits has clearly held,
as observed above, that non-workmen cannot be given the
status and protection available to the workmen under the
Act. The Apex Court has clearly held that the findings
of the Court below on the point of community of interest
was based on misconstruction of evidence and in
disregard to the vital facts. The result of this ruling
of the Apex Court is that the appellants had failed to
establish their case in relation to the claim of
community of interest and estoppel. Being so, the said
issues have attained finality, as stated above. That
apart, the decision in Isher Singh’s case was on the
applicability of the principle of res judicata in the
facts and circumstances of the case before the Apex
Court. It was not in a case wherein in the earlier
proceedings, the Apex Court on consideration of the
merits of the case had arrived at the final finding on
the dispute between the parties. Merely on account of
absence of pleadings, it can be held that the point had
not been finally decided, in the face of clear decision
of the Apex Court on the relevant issue. Being so, the
decision is of no help to the appellants in the case in
[22]
hand.
16. For the reasons stated above, therefore, we do not
find any case being made out for interference in the
impugned order. Hence the appeal fails and is hereby
dismissed. No order as to costs.
(D.G.Karnik, J.) (R.M.S.Khandeparkar, J.)
sjs/a7aj16.7
3 issues framed by the court
Whether the appellants are barred by the principle of res judicata from raising the pleas of estoppel and community of interest which were finally settled by the Supreme Court.
Whether appeals can be allowed to re-agitate issues already decided by the Apex Court on merits despite lack of specific pleadings below.
Whether the amendment seeking to include non-workmen was correctly disallowed by the single Judge.
Colour shows how this judgement treated each authority
Mukand Ltd. v. Mukand Staff and Officers' AssociationApplied¶14
2004 I CLR 1062
Isher Singh v. Sarwan Singh and othersReferred¶19
1966-I S.C.J. 475
Workmen v. M/s. Straw Board Manufacturing Co. Ltd.Referred¶97
1974-I L.L.J. 499
3 provisions across 3 enactments
Mukand Staff & Officers' Association
M/s. Mukand Ltd.
R.M.S. Khandeparkar
D.G. Karnik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court