HARIDAS MALAKAR Vs. JAY ENGINEERING WORKS

JUDGEMENT

(1.) THIS Rule is directed against an Award made by the Second Industrial Tribunal, West bengal dated January 31, 1967 whereby the said Tribunal refused to reinstate 21 workmen who were dismissed from service.

(2.) RESPONDENT No. 1 M/s. Jay engineering Works Limited is one of the leading companies in India engaged in manufacturing and sale of sewing Machines and Electric Fans. It employed at the relevant time about five thousand workmen. The workmen of the company are organised under a trade Union known as "jay engineering Workers' Union (hereinafter referred to as the Union ). On November 24, 1964, the Union served a notice of strike on the company and the workmen went on strike on and from december 17, 1963. The said strike was, however, called off on the basis of a tripartite agreement dated May 27, 1964. Under Clause 8 of the aforesaid settlement, domestic enquiries were conducted in respect of 25 workmen lasted in the agreement. As a result of the said enquiries, the said workmen were found guilty. The company decided to dismiss 24 workmen and demote one, subject to permission from the industrial Tribunal, where certain adjudication proceedings were pending at the relevant time. The permission was granted in respect of all the workmen by the Tribunal and accordingly, the management's decisions to dismiss 24 workmen and demote one were confirmed and communicated to the workmen concerned. Thereafter in accordance with the other terms of the said clause 8 of the agreement, a reference was made under Section 10 of the industrial Disputes Act, 1947 (hereinafter referred to as the Act) before the second Industrial Tribunal for adjudication of the dispute over the dismissal of 24 workmen and demotion of one workman. The Tribunal passed the aforesaid Award justifying dismissal of 2i workmen but held that the order of demotion with respect to workman bimal Ghosh was not justified. Dismissal of two other workmen viz. Tushar banerji and Badal Chatterji had also been set aside by the Tribunal. Against the said Award the Union preferred a special leave to appeal to the Supreme court under Article 136 of the constitution. On 16th October, 1967 the said application for Special leave was dismissed by the Supreme Court. Thereafter on the 12th of February, 1968 the petitioners moved this Court in an application under Article 226 of the Constitution and obtained the present Rule.

(3.) MR. Sen, appearing on behalf of the Management, raises a preliminary objection. It is contended that the present application is barred by principle of or analogous to the principle of res judicata, in view of the fact that the present application is made basically and substantially on the same grounds taken in the application for leave to appeal before the Supreme Court under article 136 of the Constitution. The fact that the Hon'ble Supreme Court declined to exercise its discretion in favour of the petitioner should be taken into consideration by this Court in exercising its discretion under Article 226 of the Constitution. In support of his contentions Mr. Sen relied upon a bench decision on the Madras High court Western India Match Company v. Industrial Tribunal, Madras and another A. I. R. 1958 Mad. 398 and a single bench decision of this Court Metal corporation of India v. Union of Indian a. I. R. 1970 Cal. 15.