RAJESH SHAH Vs. THEIR WORKMEN, UNITED WORKERS

JUDGEMENT

(1.) This petition challenges awards passed by the Industrial Tribunal at Mumbai in a reference made to it under the Industrial Disputes Act , 1947 ("Act"). The dispute concerns termination of services of workmen represented by the first Respondent union.

(2.) The Petitioner's case may be briefly stated as follows : The Petitioner is a partner of M/s.Shah & Co., which is engaged in the business of importing, trading and polishing of raw and rough diamonds. Respondent No.3 is a contractor carrying on the business of polishing of raw diamonds on a piece rate basis. Respondent No.3 was doing the work of polishing of raw diamonds by engaging manpower for the firm of M/s.Shah & Co. He had hired out premises owned by the firm on a rental basis for doing this work. The workmen, with whom we are concerned in this petition, had been engaged by Respondent No.3. Their work was supervised and controlled by him; their wages were paid, and other benefits such as ESI extended, by him. In other words, there was no employer-employee relationship between the firm and the workmen; the latter were all employees of Respondent No.3. On and from July 2009, with limited job work given by the firm of M/s.Shah & Co., Respondent No.3 carried on the assignment through a limited work force. The workmen, dissatisfied with the arrangement, approached the Industrial Court at Mumbai in a complaint of unfair labour practice (Complaint (ULP) No.126 of 2009) through their union, Rashtriya Kamgar Sena, and also individually to the Labour Court in a set of complaints (Complaint (ULP) Nos.209 to 220 of 2009). The complaints were against the Petitioner herein, Respondent No.3 herein and one Rajan Shah. (It is the case of the Petitioner that Rajan Shah had no connection whatsoever with either M/s.Shah & Co. or Respondent No.3.) Sometime later, during the pendency of these complaints, the workmen withdrew from the membership of Rashtriya Kamgar Sena, revoked the latter's authority to represent them in Complaint (ULP) No.126 of 2009 and formed Respondent No.1 union. The workmen thereafter withdrew even their individual complaints to the Labour Court and instead raised an industrial dispute in respect of the subject matter of the complaints through Respondent No.1, which resulted into the present reference (Reference (IT) No.24 of 2011). It was the case of the Respondent union in the reference that the eleven workmen represented by it were employees of M/s.Shah & Co. and their services were illegally terminated by the latter with effect from 1 April 2009. One workman deposed on behalf of the Respondent union, whilst a partner deposed on behalf of M/s.Shah & Co. By its judgment and award dated 5 March 2015, the Industrial Tribunal answered the reference in the affirmative and ordered reinstatement of all eleven workmen with full back wages and continuity of service. The Petitioner thereupon approached this court by a writ petition (Writ Petition No.11333 of 2015). It was inter alia the case of the Petitioner in that writ petition that in view of the earlier complaints of the workmen, and their withdrawal, the reference before the Industrial Tribunal was barred by the rule of res judicata contained in Section 59 of the MRTU and PULP Act. This court, by consent of parties, remanded the matter on the issue of res judicata to the Industrial Tribunal. Upon remand, the Petitioner filed an application for amendment of his written statement in the reference with a view to bring on record various facts in support of his case on res judicata, such as the authority given by the workmen to their advocate for withdrawal of the original complaints, order of the Labour Court demonstrating its having cautioned the workmen about the consequences of such withdrawal, the workmen's response thereto seeking liberty to agitate their dispute before an appropriate forum and final order of the Labour Court permitting withdrawal without any such liberty. By its order dated 30 April 2016, the application was partly allowed, whilst rejecting some of the amendments proposed. Thereafter, by its impugned award dated 23 June 2016, the Tribunal rejected the Petitioner's case on the issue of res judicata. It maintained the original award dated 5 March 2015, directing the Petitioner to reinstate all eleven workmen simply by observing that the main issue had already been decided in the award and those findings were not set aside by this court whilst remanding the reference for consideration of the Petitioner's plea of res judicata. The Petitioner has now challenged the award in the present petition on the ground of the bar of res judicata under Section 59 as well as on merits. The Petitioner challenges the original award dated 5 March 2015, the order of the Industrial Tribunal dated 30 April 2016 passed on the Petitioner's amendment application and the rectified judgment and award dated 23 June 2016.

(3.) Before delving into the merits of the petition, one particular submission of the Respondent needs to be dealt with at the outset. Learned Counsel for the Respondent union submits that whilst remanding the matter on 28 March 2016 (by the order passed on Writ Petition No.11333 of 2015), the only issue which was left open for debate was the plea of res judicata raised by the Petitioner; all other issues were rejected by this court. I have perused the order of remand dated 28 March 2016 and heard learned Counsel on the submission. It is clear, to my mind, that the basis of remanding the matter was non-consideration of the plea of res judicata arising under Section 59 of the MRTU and PULP Act, 1971 by the Industrial Tribunal. There is nothing to suggest that the other grounds of challenge raised by the Petitioner herein in Writ Petition No.11333 of 2015 were rejected or even considered by the court, whilst passing the remand order. It is true that the remand itself was made in view of the particular challenge raised by the Petitioner concerning non-consideration of his plea of res judicata by the Industrial Tribunal, and to enable the Tribunal to rule on the plea, but that does not mean that all other challenges of the Petitioner were considered and negatived by the court. The Tribunal has accordingly considered the plea of res judicata and maintained the original award (challenged in Writ Petition No.11333 of 2015) on the ground that the other issues, decided in the original award, do not merit any reconsideration. These issues now fall for consideration, since they are open to debate before this court and are required to be decided for the first time by this court. In the premises, I proceed to consider all the other objections of the Petitioner to the impugned award along with the issue of res judicata.