( 1 ) THIS writ petition has been filed by the petitioner challenging the legality of the award dated 3rd August, 2004 whereby the Industrial Tribunal 11, karkardooma Court, Delhi held that the order dated 29th April, 1992 of termination of the respondent workman was illegal and unjustified and the workman was entitled for reinstatement of service with full back wages.

( 2 ) BRIEF facts relevant for the purpose of deciding this writ petition are that respondent was working as a conductor with the petitioner. He was chargesheeted on 10th January, 1992 because of his continuous unauthorized absence from duty with effect from 18th July, 1991. An inquiry was conducted as per rules and regulations and in the inquiry, the respondent was found guilty of the charge. The Depot Manager issued a show cause notice to the respondent dated 9th April, 1992 as to why he should not be removed from service and thereafter an order of termination of service of the respondent was passed. The petitioner made an application under Section 33 (2) (b) of the Industrial Disputes Act (for short 'the Act') to the Industrial Tribunal for approval of the decision of removal of respondent from service and a notice of the application was sent to the respondent. The application was contested by the respondent before the industrial Tribunal in O. P. No. 175 of 1992. The Industrial Tribunal framed an issue regarding validity of the inquiry in following terms: 'whether the applicant held a legal and valid inquiry against the respondent according to the principles of natural justice. '

( 3 ) BOTH parties led evidence before the Tribunal. After the evidence in respect of entire matter was led before the Industrial Tribunal, the Industrial tribunal considered the evidence and heard the arguments and passed an order dated 10th February, 2000 holding that the termination of respondent by the petitioner was valid and that the petitioner had been able to establish all the ingredients of the provisions of Sections 32 (2) (b) of the Act. The Tribunal allowed the application under Section 32 (2) (b) of the Act. This order of the industrial Tribunal was not challenged by the respondent and attained finality.

( 4 ) THE respondent thereafter raised an industrial dispute and filed an application before the Industrial Tribunal under section 11a of ID Act which was listed at ID No. 214 of 2001. In the ID, the Industrial Tribunal framed following issues:-

'1. Whether fair and proper enquiry was conducted by the management' OPM 2. Page 2 of 3 If the first issue fails whether workman has committed misconduct' 3. Whether due process was adopted while passing the order of removal and one month wages were remitted to workman' OPM 4. As per terms of reference.

( 5 ) THE Industrial Tribunal gave a finding in respect of the issue No. 1 that proper inquiry was not conducted and also held other issues against the petitioner and passed the impugned award.

( 6 ) A perusal of the award would show that the Industrial Tribunal did not look into the order dated 10th February, 2002 passed on the application under order 32 (2) (b) of the Act and had not considered the findings given earlier on the issue of fair inquiry and passed the award.

( 7 ) IT is argued by the counsel for the petitioner that since the order passed by the Industrial Tribunal under Section 32 (2) (b) of the Act was not challenged by the petitioner and attained finality, the issue of inquiry being fairly conducted by the petitioner could not be re-agitated and could not be re- decided by the Industrial Tribunal as this had become res judicata. The industrial Tribunal could not have held that the inquiry was bad. The entire award was vitiated because the Industrial Tribunal ignored the earlier order passed between the same parties in respect of the same dispute. On the other hand, counsel for the respondent argued that the earlier order was not binding on the Industrial Tribunal and res judicata was not applicable. It is ar

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