- (1.) SR Bindeshvari Singh, the respondent No. 4 in this petition was an employee of the petitioner-company. On 22nd November, 1966, he met with an accident and was admitted to the I. S. Hospital, Chinsurah, district Hooghly. He was duly plastered and discharged from the hospital. Subsequently he was -placed under the treatment of Dr. K. L. Dutta, the then Medical Officer of the Company. Dr. Dutta referred him to Dr. G. K. Chowdhury, who is a specialist. The respondent No. 4 filed a claim case before the Commissioner, Workmen's compensation Court, Calcutta under the workmen's Compensation Act, 1923 (hereinafter referred to as the Compensation Act. By a judgment dated 7th May, 1969, the Additional Commissioner, Workmen's Compensation Court. Calcutta in the claim case No. 274 of 1968 held that the respondent No. 4 had suffered permanent partial disablement to the extent of 45% and that his capacity to work had been impaired to that extent and that should be the percentage of loss of earning capacity. The additional Commissioner there fore granted a compensation of Rs. 4,410/-less Rs. 900/- which had already been paid by the Company. The sum of rs. 3,510/- was determined to be the amount of compensation payable by the company. The respondent No. 4 was declared fit for normal work by Dr. C. K. Chowdhury, M. B. F. R. C. S. surgeon-incharge, orthopaedic Department and Assistant Professor of Surgery, nilratan Sircar Medical College and hospital, Calcutta, who gave a certificate dated 19. 10. 1968 to that effect. With such medical certificate respondent No. 4 made an application to the petitioner-company on 22. 10. 1968 contending, inter alia that since he had become fit to resume normal duty he should be absorbed in the employment of the petitioner company from 23. 10. 1968. The company however by a letter dated 23. 11. 1968 informed the respondent No. 4 that as he had claimed permanent partial disablement benefit, in the claim case before the Commissioner of Workmen's Compensation, the resumption of his normal work did not arise at all. Thereafter the Government of West Bengal by an order dated 18th February, 1969, referred, under section 10 of the Industrial Disputes act, 1947 (hereinafter referred to as the Act) the industrial dispute between the petitioner-company and their workmen represented by Naihati Electric supply Co. Ltd. Employees Association to the 8th Industrial Tribunal, West bengal on the following Issues: -"whether refusal of employment to sri Bindeshwari Singh is justified ? What relief if any, he is entitled to ?" the Company and the workman filed written statements before the Industrial Tribunal. The Tribunal by an award dated 14th March, 1970 held that since respondent "no. 4 was still an employee of the company, the refusal of employment to him was not justified and that he was entitled tax resume his normal work and usual wages from 32. 11. 1968. Aggrieved by the said award the petitioner moved this court and obtained a rule nisi
(2.) THE main contention urged on behalf of the petitioner is that refused of employment cannot be a subject matter for adjudication by the Industrial Tribunal as it is not, specified in the Second Schedule or the Third schedule of the Act and the Industrial tribunal had no jurisdiction to adjudicate such a dispute. This Contention raised on behalf of the petitioner has no substance and should be rejected. Under Section, 7a of the Act the Tribunal is empowered to adjudicate industrial dispute relating to any matter whether specified in the Second schedule or the Third Schedule to the act. In the order of reference the issue 'referred to the Tribunal under section 10 of the Act is stated to be a matter specified in the Second Schedule to the Act. Item 6 of the Second schedule refers to all matters other than those specified in the Third schedule to the Act. Therefore all matters connected with industrial disputes which are not specified in the third Schedule and which do not come under Item Nos. 1 to 5 of the second Schedule will be covered by clause 6. Sec. 2 (k) of the Act defines an industrial dispute to mean any dispute or difference between the employer and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. The expression "terms of employment" is wide in its amplitude and embraces within its scope disputes regarding refusal of employment and comes within the definition of an industrial dispute. Item 6 of the Second schedule covers such matters relating to industrial disputes which are not specified in the Third Schedule. In my view the Tribunal had the jurisdiction and competence to adjudicate such dispute which has been referred to it under Section 10 of the Act.
(3.) THE next contention urged by the learned Counsel on behalf of the petition is that the Tribunal had exceeded its jurisdiction in deciding the question of refusal of employment to the respondent No. 4 in view of the finding arrived at by the Additional commissioner of Workmen's Compensation that the petitioner had been permanently partially disabled within the meaning of Section 2 (g) of the compensation Act. In other words it is contended that the finding given by the Workmen's Compensation Court that the petitioner is permanently partially disabled and compensation allowed on the basis thereof cannot be the subject matter of a fresh adjudication before the Industrial Tribunal. The principle of res judicata, it is contended, will apply to such a proceeding and it is not open to the Tribunal to arrive at a finding contrary to that of the Workmen's compensation Court and to proceed on the footing that the Respondent No. 4 is an employee of the petitioner-company who has been refused employment.;