wp2095.98.sxw 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 2095 OF 1998
Shri G.B. Hingurani, Partner,
M/s. Fashion Apparels, a
Partnership firm registered under the
Indian Partnership Act, having
its establishment at Plot No.53/3,
Marol MIDC, Street No.7,
Mahakali Caves Road,
Andheri (E),
Mumbai-400 093. ig ....Petitioner.
Vs.
1 Mr. Vinayak Narayan Govekar,
a citizen of India residing at
Patel Wadi, Badam Chawl,
Room No.18, G.D. Ambedkar Marg,
Parel Village,
Mumbai-400 012.
2 Shri V.L. Kamble,
Member, Industrial Court,
having its Court at
7th Floor, Arun Chjambers,
Tardeo,
Mumbai-400 034. ....Respondents.
Mr. R.S. Pai, with Ms. Pallavi Dedna i/by Mr. Sanjay Udeshi for the
Petitioner.
Mr. Mayur D. Nagle for Respondent No.1.
CORAM : ANOOP V. MOHTA, J.
DATE : 30th April, 2010
ORAL JUDGMENT:-
::: Downloaded on - 09/06/2013 15:54:34 :::
wp2095.98.sxw 2
1 Admittedly, earlier Complaint (ULP) No. 743 of 1991, filed by the
Bombay Labour Union, Bombay was disposed of for none prosecution as
settled out of the Court. It is observed in paragraph No.11, while passing
the impugned order, by the Industrial Court, Mumbai dated 18/03/1998
that except one workmen, all the workmen have accepted their legal dues
from the Company and the said workman is the present complainant. The
learned Judge, therefore, as there was no liberty relevant to agitate the
issue again being unconditional withdrawal order, has passed the impugned
order.
2 Admittedly, except the Complainant, all the other workers have
settled the matter and accepted the legal dues, knowing fully the effect of
the closure. In my view, the relationship of the employer and the employees
is always on a foundation of a contract. Having once accepted this contract,
it means all the conditions also. Therefore, after obtaining the benefits,
almost of the members accepted the legal dues, knowing fully the
consequences of the same, there is no case to permit one worker to agitate
the issue of closure and all actions by filing such complaint, merely because
he had not accepted the legal dues with others. In the Industrial and labour
matters, it is difficult to have dispute settlement all the time by total
consent and/or total acceptance of terms and conditions by all the workers,
the same objections are always there. However, having once filed the
::: Downloaded on – 09/06/2013 15:54:34 :::
wp2095.98.sxw 3
complaint through the Union at the relevant time, of which the complainant
was also a member, they accepted the terms and accordingly the complaint
was disposed of for non-prosecution as settled out of the Court. It is not the
case that the settlement withdrawn for any reason. The submission is made
upon the action of closure of the Petitioner on merits, referring to the
amendments in the Complainant. In my view, it is necessary to see that
such labour disputes must be settled, as early as possible. If the parties
entered into the agreement and/or settlement and proceed accordingly and
basically acted upon the same by majority of the workers, as well as, the
employers, I see there is no reason now to permit such Complainant to re-
agitate the closure issue on merits. If the Complainant had accepted the
similar terms the matter could have end then and there only. In totality,
therefore, such agitation by one person by challenging the closure action of
Management and the Court also permitting to agitate the same without
deciding the preliminary objection about the maintainability of the
complaint, goes to the root of the matter.
3 Apart from above, as so called binding settlement was well within the
framework of law and the record and as the parties have already acted
upon, unless it is re-agitated on the ground of fraud and/or
misrepresentation, which is not the case here, it needs to be respected for
all the purpose, therefore, the complaint is not entertainable. This Court in
Writ Petition No. 2670 of 2002, Maharashtra Kamgar Sangharsh Samiti
::: Downloaded on – 09/06/2013 15:54:34 :::
wp2095.98.sxw 4
& Anr. Vs. Horizon, the Beach Hotel & Ors. (Coram:-D.G. Karnik, J.) in
paragraph Nos.10, 11 and 12, has considered various such aspects referring
to order 23 Rule 1 of the Code of Civil Procedure (for short, “C.P.C.”) as
under:-
“10. I am fortified in my view by the decision of the Supreme
Court rendered in Sarguja Transport Service Vs. State Transport
Appellate Tribunal, reported in (1987) 1 SCC 5. In paragraph
no.7 of the judgment, the Supreme Court observed:-
“In order to prevent a litigant from abusing the
process of the court by instituting suits again and
again on the same cause of action without any
good reason the Code insists that he should obtainthe permission of the court to file a fresh suit after
establishing either of the two grounds mentioned
in sub-rule (3) of Rule 1 of Order XXIII. The
principle underlying the above rule is founded onpublic policy, but it is not the same as the rule of
res judicata contained in Section 11 of the Codewhich provides that no court shall try any suit or
issue in which the matter directly or substantially
in issue has been directly or substantially in issue
in a former suit between the same parties, orbetween parties under whom they or any of them
claim, litigating under the same title, in a court
competent to try such subsequent suit or the suit in
which such issue has been subsequently raised, and
has been heard and finally decided by such court.
The rule of res judicata applies to a case where the
suit or an issue has already been heard and finally
decided by such court. In the case of abandonment
or withdrawal of a suit without the permission of
the court to file a fresh suit, there is no prior
adjudication of a suit or an issue is involved, yet
the Code provides, as stated earlier, that a second
suit will not lie in sub-rule(4) of Rule 1 of Order
XXIII of the Code when the first suit is withdrawn
without the permission referred to in sub-rule (3)::: Downloaded on – 09/06/2013 15:54:34 :::
wp2095.98.sxw 5in order to prevent the abuse of the process of the
Court.”
11. The principle in the Sarguja Transport Service (Supra)
was again affirmed by the Supreme Court in a later decision in
Upadhyay & Co. Vs. State of U.P. & Anr. reported in 1991(1)S.C.C. 81, after affirming that the principles contained in Order
XXIII, respondent no.1 was based on rule of public policy and
would also apply to the writ proceedings in a High Court the
Supreme Court held that the rule would also apply to a SpecialLeave Petition (SLP) filed under Artilce 136 of the Constitution
of India. It held that once a SLP filed against an order of the
High Court had been withdrawn without obtaining from the
court liberty to file a SLP again, fresh SLP against the sameimpugned order would not be maintainable.
12. In my view, the principle contained in Order XXIII Rule 1
of the Code of Civil Procedure would also apply equally to the
proceedings before a Labour and Industrial Court. If theapplicant/complainant approaching a Labour or Industrial
Court withdraws unconditionally a proceeding without
obtaining a leave of the Court to file a fresh proceeding on the
same subject matter, he would not again be allowed to file afresh proceedings on the very same subject matter.”
4 Even otherwise, I am in agreement with the above observations, the
Industrial jurisprudence, it is necessary and desirable that such Industrial
Disputes should be settled, as early as possible and once settled not to
disturb at the instance of only one person. The impugned order so passed,
on merit, in view of above is unsustainable. The complaint itself is not
entertainable. The reasonings so recorded need definite interference. The
aspect of res-judicata, estoppel, is also relevant, even to the Industrial and
Labour Dispute matters. When we talk about the applicability of principles
of natural justice; fair hearing; fair opportunity; compromise/settlement
::: Downloaded on – 09/06/2013 15:54:34 :::
wp2095.98.sxw 6
which are otherwise applicable in general litigation, are also available in
such industrial disputes. If that is so, there is no reason that the same
principle should not be extended in such rejection, basically when the
parties have not only agreed and settled the matter and accordingly got the
matter disposed of, in the year 1991 itself. The pre-agitation of one worker-
by the Complainant, is now, as done in the present case, will frustrate the
whole purpose and object, as done in the present case and in my view, if it
is permitted, it will disturb and it will create complications rather than
solving it, because of one such worker-employee though the matter settled,
still agitating the issue, this approach, in my view, itself impermissible
basically in the facts and circumstances of the case.
5 The learned counsel appearing for Respondent No.1, submitted that
the Complaint (ULP) No. 743 of 1991 was never decided on merit finally
and therefore, there is no bar to file such complaint to agitate the issue.
This submission, in my view, is not correct in view of order passed by the
Industrial Court on 14/10/1991, as under:-
“ORDER (Below Ex. U-1)”
“In view of order passed on Ex. U.1, the Complaint is disposed
off for non prosecution as settled out of Court.
No order as to cost.”
Having once settled the matter, whether it is decided finally on merits or
not, is irrelevant.
::: Downloaded on – 09/06/2013 15:54:34 :::
wp2095.98.sxw 76 Resultantly, the impugned order is quashed and set aside as
complaint so filed is not entertainable. It is dismissed. However, it is made
clear that all the amounts, already withdrawn by Respondent No.1, as the
amount paid to the other workers, need not be recovered.
7 The Petition is accordingly allowed in terms of prayer clause (a). No
order as to costs.
ig (ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 15:54:34 :::