Sinha, J. - (1.) The petitioner in this application is the Belsund Sugar Company Limited, a Company incorporated under the Indian Companies Act. Its factory is at Righa in Behar and its registered office is at 14 Netaji Subhas Road in the city of Calcutta. The subject-matter of this application concerns a set of industrial disputes said to have arisen between the Company and three of its workmen, the respondents Nos. 2, 3 and 4. By an order dated 29-3-1955 made under the Industrial Disputes Act 1947, the Government of Behar referred an industrial dispute arising between the Company and six of its workers to an Industrial Tribunal consisting of Mr. Ali Hasan. A copy of this order dated 29-3-1955 is annexure "A" to the petition. The names of the six workmen mentioned therein are found in annexure "B". We are concerned in this only with three workmen, and they are Nos. 1, 2 and 5 in the order of reference, being respondents 3, 5 and 2 in this application. The notification mentioned above, states that the Governor of Bihar was of the opinion that an industrial dispute existed or was apprehended between the Management of the Sugar Factories mentioned in the order, and their workmen named in Annexure "B" regarding the matters specified in annexure ''A". The annexure "A" runs as follows :-- "Whether the workmen named in Annexure B are entitled to re-instatement with compensation or any other relief." The Tribunal went into the matter and made its Award dated the 21st July, 1955 a copy whereof is annexure "C" to the petition. As I have mentioned above, the three respondents with whom we are concerned in this case are respondents No. 2. Ram Nirekhan Singh, respondent No. 3, Kuseshwar Singh and respondent No. 4 Jyoti Narain Dubey. All these three workmen had been dismissed by the Company. By its interim Award, the Industrial tribunal re-instated all of them. Against this decision, the Company appealed to the Appellate Tribunal and a copy of the finding of the Appellate Tribunal is annexure "D" to the petition. By the order dated the 20th February, 1956 the Appellate Tribunal upheld the order of the Industrial Tribunal save and except this that with regard to Kuseshwar Singh it varied the order by imposing four day's suspension. It is against this appellate order that this Rule is directed.
(2.) The original Tribunal is not before me, because it is a Tribunal located in Bihar, in respect of which I have no jurisdiction. The labour Appellate Tribunal, respondent No. 1, is situate within my jurisdiction and its records are situate within my jurisdiction and it is possible to issue a Writ of Certiorari or Mandamus upon that Tribunal. With regard to these three workers, their cases will have to be considered somewhat separately, but the first point taken by Mr. Ginwalla is a common point, namely, that none of the disputes so far as these three persons are concerned was an industrial dispute, but that the disputes were individual disputes and therefore the order of reference is invalid. If of course the order of reference is invalid, then the appeal would be incompetent. I think there is substantial ground for saying that the order of reference is incompetent because the disputes are individual disputes and not collective or industrial disputes. To start with, the order of reference itself will show that the dispute is stated to be between the Company and certain individual workers. The Award of the Industrial Tribunal in its introductory statement recognises this and describes it as a dispute between the Management of five sugar mills and 38 individual employees of these mills as detailed in annexure "B" of the order of reference. It appears from the order-sheet that at the hearing three of the workmen in respect of whom the reference was made dropped out. With regard to the remaining three. Kuseshwar Singh represented himself personally and with regard to the other two, they were represented at the hearing by the Secretary Righa Mills' Workers' Union. This of course cannot change the dispute into an industrial dispute, because an individual worker has a right to be represented by a Union or the Secretary of a Union. So far as this point is concerned, the preliminary objection that has been taken by Mr. Dutt on behalf of the respondents is that this is an objection as to jurisdiction which was never taken in the Courts below. Going through the records, it appears that this is so. In other words, neither before the Industrial Tribunal, nor before the Appellate Tribunal was this point of jurisdiction taken by the Company or anybody else. So far as the Company is concerned, it fought the case in both the Courts below and took the chance of success. In my opinion, it ought not to be allowed in this application to take the point of jurisdiction for the first time in this Court. It will be remembered that this is a case of Certiorari and Mandamus and not of Prohibition.
(3.) The next point taken relates to the respondent Ram Nirekhan Singh, and is as follows: He was employed by the Company which had discharged him "on the 29th February, 1948 with one month's pay in lieu of notice. Thereupon the discharged workman raised an industrial dispute in which the Companies' workmen took up the dispute and claimed that respondent No. 2 should be re-instated. Thereupon the dispute was referred as an industrial dispute by order of reference dated the 11th September, 1948 of the Government of Bihar. It was referred to a Tribunal consisting of Sri Shivapujan Rai. There was an Award dated the 30th May, 1949 in which it was held that the dismissal was proper and the respondent was not entitled to re-instatement. The Award was published in the Bihar Gazette dated the 17th June. 1949. It is not as if after that the said respondent was re-instated by the Company or at any time worked for the Company. Notwithstanding the fact that the matter was already covered by an Award, the dispute was referred to adjudication as stated above. The point taken by the company was, and as formulated before me is, that the matter is covered by principles analogous to res judicata. So far as the said respondent is concerned, he did take up a very ingenious stand. It was stated on his behalf that even after the Award an assurance was given by the Manager of the Company to the Secretary of the Union concerned that the said respondent will be re-employed. It is therefore said that this was a fresh dispute. So far as this question of assurance is concerned, the Industrial Tribunal has mentioned the matter in its judgment but has arrived at a decision without considering it. It decided this matter on the question of hardship and it held that the principle of res judicata is not applicable to industrial disputes. This has been upheld by the Appellate Tribunal, which also has not dealt with the question of the alleged assurance. Both the Tribunals below have held that the principles of res judicata are not applicable to industrial disputes, and have stated that the respondent concerned had not had ample opportunity of defending himself in the previous hearing and was prejudiced oK this ground the plea of res judicata was negatived and he was ordered to be re-instated. In my opinion, the reasons given and the conclusions of law that have been arrived at on this point, are erroneous on the face of the proceedings. It is stated there that the principle of res judicata does not apply to industrial disputes, a proposition which has been negatived by the Supreme Court in the case of Burn and Co. v. Their Employees. Ayyar J., pointed out that Section 11 of the Civil Procedure Code will not be directly applicable, hut the principle underlying it as expressed in the maxim "interest rei publicae ut sit finis litium" was founded on sound public policy and was of universal application. It was further pointed out relying on Sheoparsan Singh v. Ramnandan Prasad. 43 Ind App 91 : (AIR 1916 PC 78) (B), that the rule of res judicata was dictated by a wisdom which is for all time. The learned Judge held that there were good reasons why this principle should be applicable to decisions of Industrial Tribunals also. Therefore, the proposition that the rule of res judicata does not apply to industrial disputes is entirely wrong. But quite apart from that. I think that the Tribunals below failed to observe one aspect of the question. Once the respondent had ceased to be in the employ of the Company, by being dismissed, he could certainly raise an industrial dispute which he did raise regarding his order of dismissal. When however the order of dismissal was upheld by the Industrial Courts, he could no longer be considered as a workman of the Company and therefore anything that happens afterwards, namely, any assurance on the part of the Manager of the Company, if the manager had authority, may give rise to a cause of action (If the assurance can be said to have any legal significance) that has arisen between the Company and the said respondent in his individual capacity, but not as a worker. Therefore, such a dispute cannot possibly be called an industrial dispute. What the Industrial Tribunal did was to quote the decided cases wherein it was held that a discharged workman would nevertheless be a workman for the purpose of an industrial dispute. It failed to see however that the principle did not apply to the facts of this case. In my opinion, therefore, the case of Ram Nirekhan Singh was obviously wrongly decided and the decision of the Appellate Tribunal in respect of his case is bad on the face or the record. With regard to the respondents Nos. 3 and 4, namely, Kuseswar Singh and Jyoti Narain Dubey, the points taken are as follows:;