The findings on the fairness of a domestic enquiry under Section 33(2)(b) of the Industrial Disputes Act are binding and operate as res judicata in subsequent disputes regarding dismissal penalties.

ORDER :

1. The question before the Court is:

"Whether the finding recorded by the Authority in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, 1947, on the issue “whether the domestic enquiry was fair and proper” operates as Res Judicata, in the subsequent proceeding before the Labour Court, challenging the penalty of dismissal.”

2. The Labour Court has held that the finding in a proceeding under Section 33 (2)(b) of the Industrial Disputes Act, 1947 (for short 'Act, 1947') in so far as it relates to the finding on the issue whether the domestic enquiry was fair and proper, operates as Res Judicata in a proceeding initiated by the Union challenging the order of dismissal.

3. The Union/Petitioner representing three workmen, being aggrieved by the aforementioned order, is before this Court.

4. Three members of the petitioner-Union, namely K.Muniyappa, K. Chandrashekar and G. Krishnamurthy, were dismissed from service on 01.10.2002, 05.06.2002 and 13.10.2000, respectively. The Management invoked Section 33 (2)(b) of the Act, 1947, seeking approval for a penalty of dismissal. In the said proceeding, workmen took a stand that the domestic enquiry was not fair and proper. Evidence was led on the issue relating to the fairness of the domestic enquiry. The Labour Court, on appreciation of evidence led before it by both sides, held that the domestic enquiry was fair and proper. Consequently, accorded approval for dismissal.

5. The Union later raised a dispute challenging the penalty of dismissal. Union contended that the domestic enquiry was not fair and proper. The Management urged that in a proceeding under Section 33 (2)(b) of the Act, 1947, it has already been held that the domestic enquiry was fair and proper and the said finding operates as Res judicata and cannot be agitated again, in a proceeding challenging penalty of dismissal of service.

6. The Labour Court accepted the Management’s plea and declined to reconsider the said issue, holding that it operates as Res judicata. Hence, the present petition by the Union.

7. Learned counsel appearing for the petitioner would contend that the approval granted under Section 33 (2)(b) of the Act, 1947, is not preceded by adjudication. It is only a tentative view on the domestic enquiry, for the purpose of lifting the ban to impose a penalty, and the validity of the domestic enquiry can be questioned in the dispute under Section 10 of the Act, 1947. It is urged that the Authority under Section 33 (2)(b) has no jurisdiction to adjudicate on the fairness of the domestic enquiry. Thus, the issue on the fairness of the domestic enquiry does not operate as Res judicata.

8. In support of his contention, learned counsel for the petitioner would place reliance on the judgment of the Apex Court in M/s. G. Mckenzie and Co. Ltd. Vs. Its Workmen and others , AIR 1959 SC 389 and also the judgment of the Division Bench of this Court in RPG Cables Limited Vs. G.M. Kulkarni , W.A. No. 600/2012.

9. Learned counsel would further submit that the Labour Court committed an error in referring to the judgment in Chairman and Managing Director, The Fertilisers and Chemicals Travancore Ltd. and Others Vs. General Secretary FACT Employees Association and others , AIR 2019 SC 1870 though said judgment is not delivered in the context of Section 33 (2)(b).

10. Learned counsel for the respondent submits that the Labour Court has righ