PRATAP KUMAR RAY, J. - (1.) Heard learned advocates appearing for the parties.
(2.) This writ application has been filed by the petitioners B.M.G. Crossing (P) Limited and one of its Directors challenging the award dated January 2, 2003 passed by the learned Judge, 2nd Labour Court, West Bengal, whereby and whereunder the industrial reference under Section 10(1-B) of the Industrial Disputes Act was answered in favour of the workman-Respondent No. 3 of this application directing the present petitioners to reinstate the workman and to pay all his back wages within 30 days from the date of the order. Learned advocate for the petitioners submits that the workman was transferred to Uluberia factory directing his attendance at 9 a.m. by relaxing the condition of attendance at 8 a.m. as applicable to other workmen, but the workman since did not join the factory at 9 a.m., a warning letter was issued on December 12, 1996 directing him to attend at 9 a.m. positively on everyday, failing which his service would no longer be required. It is contended that there was no termination of service per se, but a warning letter was issued. It is the case of the workman that with effect from December 13, 1996, the workman was not allowed to attend the duty and for which the workman moved the First Labour Court, West Bengal, by an application under Section 33-C(2) of the Industrial Disputes Act, praying for necessary relief of payment. Before the First Labour Court, however, it appears that an adjudication was made on the print that the service of the workman was not terminated, but only a warning letter was issued. The workman thereafter proceeded to have a reference of industrial dispute about illegal termination and accordingly an industrial dispute was raised under Section 10(1-B) of the said Act. Learned advocate for the petitioners submits that since the First Labour Court has already held while adjudicating the application under Section 33-C(2) of the Industrial Disputes Act, that the service of the workman was not terminated and accordingly the workman was not entitled to receive the retrenchment benefit as claimed, such finding was binding upon the Second Labour Court, West Bengal, who has decided the industrial dispute in terms of the reference under Section 10(1-B) of the said Act. It has been further contended that the doctrine of res judicata is squarely applicable in this case.
(3.) This application has been opposed by the workman contending, inter alia, that the principles of res judicata has no applicability in this case since a decision under Section 33-C(2) of the said Act is based on the admitted legal entitlement of the party to claim money and there is no scope to decide the question of legality and validity of entitlement. Reliance has been placed upon the judgment in the case of Municipal Corporation of Delhi v. Ganesh Razak, reported in 1995 (1) SCC 235 : 1995-I-LLJ-395. It has been further contended that even if there is any finding by the First Labour Court against the workman so far as retrenchment issue is concerned, the same is without jurisdiction as the First Labour Court while adjudicating the matter under Section 33-C(2) of the said Act, had no power to arrogate himself with the jurisdiction of Industrial Tribunal to adjudicate upon the legality and validity of the claim. Reliance has been placed to the judgment in the case of Navabharat, Hindi Daily, Nagpur v. Nagpur Union of Working Journalists & Ors., reported in 1995-III-LLJ (Suppl)-103 (Bom-DB), a judgment of Division Bench of Bombay High Court at Nagpur. Hence, the short question involved herein is whether the finding of the First Labour Court holding that the workman's service was not terminated would be attracted by the doctrine of res judicata and/or constructive res judicata before the Second Labour Court, who decided the industrial dispute under Section 10(1-B) of the said Act. This point is not at all res integra. Long back in the case of Central Inland Waterways v. Workmen reported in AIR 1974 SC 1604: 1974 (4) SCC 696, the Apex Court has already decided the point by making a differential treatment of both the two Sections, namely, Section 33-C(2) and Section 10(1-B) of the said Act, by holding that Section 33-C(2) of the said Act is nothing but an execution proceeding to determine the admitted legal claim. It has been further held that in adjudicating the application under Section 33-C(2) of the said Act, entitlement of any claim is not within the adjudicatory process of the concerned Labour Court. The same view has been reiterated further by holding that sophisticated concept of constructive resjudicata has no applicability as reported in the case of Mumbai Kamgar Sabha, Bombay v. Abdullabhai Fazullabhai, reported in AIR 1976 SC 1455 : 1976 (3) SCC 832 : 1976-II-LLJ-186. The statutory provision is also clear to that effect. The language of Section 33-C(2) is that when a workman is entitled to receive any amount, then the application could be filed. Hence, entitlement of the amount is condition precedent for empowering the concerned Labour Court to adjudicate upon the application under the said provision. If any dispute is raised about entitlement of any claim, immediately that Labour Court ceases to exercise its power and if any power still is exercised by arrogating itself with the jurisdiction, the same would be without jurisdiction and nullity.;