MUKAND STAFF AND OFFICER ASSOCIATION Vs. MUKAND LTD

JUDGEMENT

(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 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 Association 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 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.