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High Court Of Calcutta
U. C. BANERJEE
GENERAL ELECTRIC CO OF INDIA LTD - Appellant
Versus
FIFTH INDUSTRIAL TRIBUNAL OF WEST BENGAL - Respondent
C. O. 13049 Of 1984
Decided On : 05/28/1985
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 33(2)(B) - DOMESTIC ENQUIRY - VALIDITY - CONCLUSIVENESS - RES JUDICATA - A finding in a proceeding under S. 33(2)(b) regarding the validity of a domestic enquiry cannot be used as res judicata in a subsequent reference under S. 10 even though the questions that arise for consideration are the same.
Fact of the Case:
The petitioner dismissed a workman after a domestic enquiry. The workman challenged the dismissal before the 7th Industrial Tribunal under S. 33(2)(b) of the Industrial Disputes Act, 1947. The Tribunal held that the enquiry was fair and the dismissal was justified. Subsequently, the workman raised an industrial dispute before the 5th Industrial Tribunal under S. 10 of the Act. The petitioner contended that the finding of the 7th Industrial Tribunal was conclusive and could not be reopened.
Finding of the Court:
The Court held that the finding of the 7th Industrial Tribunal in the proceeding under S. 33(2)(b) was not conclusive in the subsequent proceeding under S. 10. The Court relied on the Supreme Court decisions in Bhatat Iron Works v. Bhagubhai, M. S. Dhantwal v. Hindustan Motors, and Lalaram v. D. C. M. Chemical works, which held that in proceedings under S. 33(2)(b), the jurisdiction of the Industrial Tribunal is confined to the enquiry as to whether a proper domestic enquiry has been held, whether a prima facie case for dismissal is made out, whether the employer had come to a bona fide conclusion that the employee was guilty, and whether the employer has paid or offered to pay wages for one month to the employee and applied for approval of the action taken. The Court also relied on the Division Bench judgment of this Court in Graphite India Ltd. v. The state of W. B., which held that the finding recorded in a proceeding under S. 33(2)(b) regarding the validity of a domestic enquiry cannot be used as res judicata in a subsequent reference under S. 10.
Issues: Whether the finding of the 7th Industrial Tribunal in the proceeding under S. 33(2)(b) was conclusive in the subsequent proceeding under S. 10.
Ratio Decidendi: The Court held that the finding of the 7th Industrial Tribunal in the proceeding under S. 33(2)(b) was not conclusive in the subsequent proceeding under S. 10 because: * The jurisdiction of the Industrial Tribunal in proceedings under S. 33(2)(b) is limited to the enquiry as to whether a proper domestic enquiry has been held, whether a prima facie case for dismissal is made out, whether the employer had come to a bona fide conclusion that the employee was guilty, and whether the employer has paid or offered to pay wages for one month to the employee and applied for approval of the action taken. * The finding of the Industrial Tribunal in proceedings under S. 33(2)(b) is only a prima facie finding and not a final decision on the merits of the dispute. * The doctrine of res judicata does not apply to the finding of the Industrial Tribunal in proceedings under S. 33(2)(b) because the issue of the validity of the domestic enquiry is not finally decided in such proceedings.
Final Decision: The Court dismissed the writ petition and held that the 5th Industrial Tribunal was not bound by the finding of the 7th Industrial Tribunal in the proceeding under S. 33(2)(b).
( 1 ) THIS writ petition is directed against an order dated 4th July, 1984 passed by the 5th Industrial Tribunal wherein the Tribunal held that findings of the 7th Industrial Tribunal in a proceeding under S. 33 (2) (b) of the Industrial disputes Act, cannot in any way stand as a bar in deciding they issue afresh.
( 2 ) BEFORE adverting to the rival contentions a brief reference to facts is necessary.
( 3 ) THE concerned workman being respondent No 3, herein was employed by the petitioner as Stores Clerk in the Paharpur Works of the petitioner's factory. By reason of certain acts on the part of the respondent No. 3, the petitioner, by a notice dated 14th February, 1981, read with its corrigendum dated 16th February, 1981, required the concerned respondent to show cause as to why disciplinary proceedings should not be initiated. The respondent in turn showed cause by his letter date 9th February 1981 and since the cause shown by the respondent No 3 was found not satisfactory, an enquiry was directed. Subsequently an Enquiry Officer was appointed to enquire into the charges leveled against the respondent workman. The Enquiry Officer made his report on 21st September 1981 and forwarded the same along with the records of proceedings of the enquiry to the petitioner. The General Manager of Paharpur Works, on consideration came to the conclusion that the respondent workman was guilty of the offences, constituting major misdemeanor, and by a letter dated 26th October 1981, dismissed the respondent workman from service with immediate effect. From the facts it appears that at the time of dismissal an industrial adjudication was pending before the 7th Industrial Tribunal of West Bengal. The petitioner as such, in compliance with the statutory provisions applied for approval. The petitioner, however, offered one month's wages to the respondent workman.
( 4 ) THE application before the 7th Industrial Tribunal was registered as Case No. 69/1981 and notice where of was duly sent to the concerned respond who in turn appeared in the proceeding and filed his written statement. The petitioner made an application before 7th Industrial Tribunal for hearing of a preliminary issue in regard to the legality and validity of the domestic enquiry held by the enquiry officer. The 7th Industrial Tribunal admitted the application and during the hearing the Investing Officer was examined and cross-examined at length Subsequently, by the order dated 24th September, 1982, being order No, 28, the 7th Industrial Tribunal came to the conclusion that the enquiry was held in accordance with the principles of natural justice. In the said order the 7th Industrial also held that the petitioner had come to a bona fide conclusion and the respondent No. 3 was guilty of the charges leveled against him an the dismissal of the respondent No 3 did not amount to unfair labor practice.
( 5 ) BY a letter dated 21st March 1983 the paharpur Works Employees'. Union being the respondent No. 2 in the writ petition, requested the petitioner for reinstatement of the respondent No. 3 but the same having been rejected, the State Labor Directorate was approached to intervene in the matter and by its order No 3809 dated 27th December, 1983, the State Government referred the dispute for adjudication to the respondent No 1, being the 5th Industrial Tribunal, under S. 10 of the Act of 1947. As per direction of the 5th Industrial Tribunal the parties duly filed their respective statements. Subsequently on the application of the petitioner of a declaration in rearguard to the validity and conclusiveness of the finding of the 7th Industrial Tribunal in regard to the domestic enquiry, the 5th Industrial Tribunal, cannot to a conclusion, that the finding of the 7th Industrial Tribunal cannot be termed to be conclusive in as much as the same was merely prima facie in nature. It is this order, which is under challenge in the writ petition under consideration.
( 6 ) THE ques
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