WORKMEN OF THE COCHIN LIGHTERAGE CORPORATION Vs. PAUL ABRAO

JUDGEMENT

(1.) THIS is an appeal from the judgment of Nambiyar, J. , allowing Original Petition No, 871 of 1969, The learned Judge allowed the petition in which the first prayer was for the issue of a writ of certiorari or other order or direction quashing Ext. P19 produced along with the original petition. The appeal is by the workmen of the Cochin Lighterage Corporation represented by the general secretary, Cochin Port Cargo Labour Union. It was at the instance of this union that the dispute was referred to the Tribunal that passed Ext. P 9 order. The dispute was numbered as CGIT-97 of 1964. The first issue referred for the adjudication of the Tribunal as is seen from Ext. P1 produced along with the original order of reference was the following: Whether the action of the employers, (1) Shri Paul Abrao of M/s. Paul Abrao and Sons, Cochin, and (2) the Cochin Lighterage Corporation, Cochin-1, in not providing work for the workmen specified in schedule II who were engaged in floating craft prior to and as on 1st June, 1962 or thereafter, is justified?

(2.) SRI Paul Abrao, mentioned in the issue referred to the Tribunal, by an indenture dated 1-10-1962, assigned some portion of the business of the firm M/s. Paul Abrao and Sons which was functioning as clearing and forwarding agents and as stevedores, to his brothers who formed themselves into a separate and independent partnership under the name and style of the Cochin Lighterage Corporation for taking over the business transferred. That firm had been registered under the Indian Patnership Act. The Cochin Lighterage Corporation, which, for brevity, we shall refer to it as the "corporation" hereafter, took over the cargo boats, barges and tugs with all appurtenances for a consideration of Rs. 1,75,000 and the possession of those articles was admittedly with the Corporation therafter. The indenture also provided that the Corporation would take into their service all tindals, serangs, drivers, lascars and others till then in the employment of Paul Abrao and Sons in respect of the boats, barges and tugs transferred without any break in service. The document also stipulated that the partners of the Corporation had no rights of employment under Paul Abrao. It was the case of Paul Abrao and his heirs after Paul Abrao's death-they are the petitioners in the original petition-that after the deed of 1-10-1962, the workmen referred ceased to be the employees of Paul Abrao and of the firm Messrs. " Paul Abrao and Sons and had become exclusively the workmen of the Corporation. Some disputes arose from this stand of Sri Paul Abrao and M/s. Paul Abrao and Sons which gave rise to sathyagrahy in front of the business house of M/s. Paul Abrao and Sons which in its turn resulted in the institution of two suits, O. S. No. 27 of 1964 of the sub-Court, Cochin and O. S. No. 55 of 1961 of the sub-Court, Ernakulam. The plaint, the written statement and the judgment in O. S. No. 27 of 1964 were produced before the Tribunal and the contention was raised by Sri Paul Abrao and by his legal heirs after Paul Abrao's death that the question as to whether there was any employer-employee relationship between the workmen of the Corporation on the one hand and Sri Paul Abrao and/or Messrs. Paul Abrao and Sons on the other, was the subject-matter of two specific issues, Issues 3 and 8 in O. S. No. 27 of 1964 in the sub-Court, Cochin, that those issues had been decided against the workmen by paragraph 4 of the judgment Ext. P10 in that case and that in view of the findings entered on those issues by the civil Court, the Industrial Tribunal is precluded from considering that aspect on the principles of res judicata. The 1st defendant in O. S. No. 27 of 1964 was the Cochin Port Cargo Labour Union and the 2nd defendant, the secretary of that union. Though the union and its secretary were made ex nomine parties to the suit, it is the case of the petitioners in the original petition, respondents 1 to 4 in this writ appeal, that the real parties were the workmen of the Corporation and that the decision is binding on the workmen. This contention was negatived by the Tribunal by the order Ext. P19 which was impugned in the original petition. Nambiyar, J. , set aside Ext. P 9 order and held that the decision in the civil suit was a bar, on the principle of res judcata and precluded the Industrial Tribunal from considering issue No. 1 in so far as it related to the question whether the said workmen were or wire not employees of Sri Paul Abrao and/or of Messrs. Paul Abrao and Sons. The question arising for decision in this appeal is whether the view taken by the learned Judge is the correct view.

(3.) SECTION II of C. P. C. as such is admittedly not applicable and cannot be relied on on its terms for deciding the question. This is admitted by counsel on both sides. What is contended is that Section 11 after all only embodies the principle, it is said, in an attenuated form, of a rule of estoppel termed at times as res judicata and that on the general principles respondents 1 to 4 are entitled to contend that the matters settled by a solemn judgment of a civil Court should not be reagitated even if it arises before an Industrial Tribunal on the basis of a reference. General principles of res judicata are in certain respects at least wider than the principles laid down under Section 11 of the Code of Civil Procedure, are not doubted. For instance, it is a well-known rule now made clear by the wording of Section 11 itself, that in order that Section 11 might apply, the Court that decided the former action must be competent to try the latter suit. This principle at one time rested only on the judgment of Sir Barnes Peacock in Mussamut Edun v. Mussamut Bechun reported in (1867) 8 Suth. W. R. 175 and the Calcutta High Court in Run Bahadoor v. Singh Lucho Koor reported in (1881)6 Cal. 406, had taken a different view. The view of Sir Barnes Peacock had been accepted by the Privy Council in appeal in Run Bahadoor Singh v. Lucho Koor reported in (1885) 11 Cal. 301 from the decision of the Calcutta High Court which was reversed. So even before the Civil Procedure Code specifically stated so, for the purpose of the applicability of the section relating to res judicata in the Code of Civil Procedure, the Court that decided the former suit must have had jurisdiction to try the latter action. *this rule, however, will not apply if what is invoked is the genera] principle of res judicata and not Section 11 of the Code of Civil Procedure. This is also well-established, the Supreme Court having spoken on the matter as early as 1953 in Srimati Raj Lakshmi Dasi and Ors. v. Banamall Sen and Ors. reported in So we have to proceed on the basis that the lack of jurisdiction of the civil Court to decide industrial disputes by itself will not preclude the principle of res judicata from applying in a given case. But there are further questions that have to he considered before it can be postulated that an Industrial Tribunal is precluded from deciding an issue referred to it by the Government.