Judgment NAGENDRA PRASAD SINGH, J. 1. This writ application has been filed on behalf of the petitioner for quashing an award dt. 19-9-1980 of the Labour Court, Jamshedpur. A copy of the said award is Annexure-6 to the writ application. 2. The petitioner was appointed as Assistant Security Officer by M/s Tata Engineering & Locomotive Company Ltd. (hereinafter to be referred to as the Company), in June, 1967. In the night between 25/26th Mar, 1970 the petitioner was posted at the main-gate on C shift. A truck containing articles of the Company worth Rs. 1,00,000/- (one lakh) was allowed to pass the gate. On 5-4-1970 a charge-sheet was issued against the petitioner. The petitioner submitted his explanation and, after a domestic enquiry, the petitioner was dismissed with effect from 4-8-1970. Later, the order of dismissal was converted into an order of discharge with effect from 4-8-1970. 3. On 2-5-1972, a complaint under Section 26 of the Bihar Shops and Establishments Act along with an application for condonation of delay was received by the Labour Court, an authority constituted under the said Act, and a case was registered. In that case, the Company appeared and opposed the prayer of the petitioner for an order of reinstatement with back wages. The Labour Court, after hearing both the parties, by its order dt. 6-5-1975, case to the following conclusions : 1. The petitioner was an employee under the Bihar Shops and Establishments Act, as such the application was maintainable. 2. There was no evidence that this petitioner had any hand in the removal of materials, so as to be held guilty of a prescribed misconduct. 3. According to the standing order, no misconduct was proved and as such the statutory one months notice was necessary before dismissal/discharge. 4. The order of discharge passed against the petitioner was illegal and unjustified. 5. The petitioner, however, was not entitled to reinstatement in the facts and circumstances of the case but was only entitled to compensation. Having recorded the aforesaid findings, the Presiding Officer, Labour Court, purported to consider the question as to whether the delay in filing the complaint under S. 26 of the Bihar Shops and Establishments Act, hereinafter referred to as the Shops and Establishments Act should be condoned. Having recorded the aforesaid findings, the Presiding Officer, Labour Court, purported to consider the question as to whether the delay in filing the complaint under S. 26 of the Bihar Shops and Establishments Act, hereinafter referred to as the Shops and Establishments Act should be condoned. He came to the conclusion that as no sufficient cause had been made out for condonation of the delay in filing such a complaint, the complaint filed on behalf of the petitioner was barred by limitation. A copy of the said order dt. 6-5-1975 is Annexure-1 to the writ application. 4. On 20-5-1976, the appropriate Government in exercise of the powers conferred on it by S. 10(l)(c) of the Industrial Disputes Act made a reference to the same Labour Court for adjudication of the questions as to whether the dismissal of the petitioner by the Company was proper and justified and, if not justified, then whether the petitioner was entitled to reinstatement or any other relief? 5. The Company filed a writ application before this Court challenging the aforesaid reference made by the appropriate Government which was numbered as C. W. J. C. No. 182 of 1976(R). In the said writ application, it was urged on behalf of the Company that the complaint filed on behalf of the petitioner having been dismissed under the provisions of the Shops and Establishments Act, a reference under the Industrial Disputes Act was incompetent. This Court in view of the Full Bench decision of this Court in the case of Indian Oil Corporation v. C. D. Singh (1972-2 Lab LJ 395) : (1972 Lab IC 808) held that there was no bar in making a reference by the appropriate Government even in cases where the workman concerned has approached the authority under the Shops & Establishments Act. The writ application was accordingly dismissed on 14th of July, 1977. A copy of the said order is Annexure-3 to the writ application. 6. When the reference case was taken up by the Labour Court, an application was filed on behalf of the Company to decide the question of jurisdiction as a preliminary issue saying that the findings recorded by the authority while disposing of the application under S. 26 of the Shops and Establishments Act shall operate as res judicats and as such the reference has to be answered in favour of the Company and against the workman. That application having been rejected, another writ application was filed on behalf of the Company before this Court which was numbered as C. W. J. C. No. 543 of 1978(R). That writ application by an order dt. 7-9-1979 was disposed of by a consent order. This Court directed that the question whether the findings recorded in the proceedings under section 26 of the Shops and Establishments Act shall operate as res judicata in the present reference case shall be considered as one of the issues by the Labour Court. It was further directed that the validity of the reference made under S. 10 of the Industrial Disputes Act shall not be challenged by the Company before the Labour Court. 7. Thereafter, both parties were heard and the impugned award has been given by the Labour Court. According to the award, the findings recorded by the authority in the aforesaid proceeding under section 26 of the Shops and Establishments Act shall operate as res judicata in the present reference case and the petitioner cannot re-open those questions which have been finally decided by the authority in the said proceeding. Having held so, the Labour Court answered the reference saying that the petitioner was not at all entitled to any relief whatsoever. A copy of that award is Annexure-6 to the writ application. 8. The learned counsel appearing for the petitioner first questioned the validity of the finding of the presiding Officer, Labour Court in respect of res judicata. According to the learned counsel, once the reference has been held to be valid, the Labour Court was entitled to examine the question afresh and to record its own findings. The learned counsel further submitted that as the complaint filed under S. 26 of the Shops and Establishments Act had been dismissed on the ground of being barred by limitation, findings recorded by the Labour Court in that proceeding on other questions are of no consequence so far as the present proceeding is concerned. Reliance was placed in this connection on the case of Shankerlal Patwari v. Hiralal Murarka (AIR 1950 PC 80). Reliance was placed in this connection on the case of Shankerlal Patwari v. Hiralal Murarka (AIR 1950 PC 80). The Head-note of the said report says that : "Court holding that suit is not maintainable by reason of failure to comply with S. 80 Findings given on merits are obiter and do not support plea of res-judicata either in favour of or against party." But on reading of the whole judgment it appears that the ratio of the judgment has not been properly put in the head-note. This has also been noted by the Supreme Court in the case of Gangappa Gurupadappa Gugwad v. Rachawwa ( AIR 1971 SC 442 ). After examining the case of Shankarlal Patwari v. Hiralal Murarka (AIR 1950 PC 80) (Supra), the Supreme Court observed as follows : "...No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiffs cause of action is against a Government and the plaint does not show that notice under S. 80 of the Civil P. C. claiming relief was served in terms of the said section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by S. 80 of the Code i s being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under S. 80 was necessary.If the Court decided the various issues raised in the pleadings it is difficult to see why the adjudication of the rights of the parties apart from the question as to the applicability of S. 80 of the Code and absence of notice thereunder should not operate as res judicata in a subsequent suit where the identical questions arise for determination between the same parties....." In my view, if the findings recorded by the Labour Court in a proceeding under S. 26 of the Shops and Establishments Act operate as res judicata in a reference under section 10 of the Industrial Disputes Act, then it is difficult to accept the contention made on behalf of the petitioner that as the application under section 26 of the Shops and Establishments Act was dismissed on the ground of Limitation, the findings recorded by the Labour Court on other issues in that proceeding shall not operate as res judicata in the present proceeding. 9. It is well settled by a series of judgments of the Supreme Court that principles of res judicata are not only contained in S. 11 of the Civil P. C. but the principles contained in that section are applicable even to proceedings other than suits. Reference in this connection may be made to the case of Bombay Gas Company Limited v. Jagannath Pandurang (1975-2 Lab LJ 345) (SC). In that case, the workmen had filed applications before the authority constituted under the Payment of Wages Act claiming overtime wages for the periods mentioned therein. Those applications were finally disposed of by the authority under the said Act. Then, there was an award of the Industrial Tribunal on a reference being made under the Industrial Disputes Act. In that case, the workmen had filed applications before the authority constituted under the Payment of Wages Act claiming overtime wages for the periods mentioned therein. Those applications were finally disposed of by the authority under the said Act. Then, there was an award of the Industrial Tribunal on a reference being made under the Industrial Disputes Act. In that connection, a question of res judicata arose and it was held by the Supreme Court that the principle of res judicata was applicable in the circumstances mentioned above. It was observed as follows : "...The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Civil P. C. but to all litigations. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claims..." Again in the case of the Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust ( AIR 1978 SC 1283 ) : (1978 Lab IC 1111), it was pointed out that doctrine of res judicata is codified in S. 11 of the Civil P. C. but it is not exhaustive. It was observed as follows (Para 8) : "..If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties..." 10. As such, it is too late to urge that the findings recorded by the Labour Court in the proceeding under the Shops and Establishments Act shall not operate as res judicata in the reference case which was heard by the same Labour Court, although under a different Act. But, it need not be pointed out that in that event the petitioner as well as the Company both are bound by the findings recorded in the earlier proceeding. In the earlier proceeding, it has been held that the petitioners termination was illegal and unjustified, but he was not entitled to reinstatement; he was entitled only to compensation. But, it need not be pointed out that in that event the petitioner as well as the Company both are bound by the findings recorded in the earlier proceeding. In the earlier proceeding, it has been held that the petitioners termination was illegal and unjustified, but he was not entitled to reinstatement; he was entitled only to compensation. The finding that petitioner was entitled to compensation for his illegal termination is binding on the Company and that question cannot be re-opened in this case. 11. Faced with this situation it was urged on behalf of the Company that even the finding that the complaint filed by the petitioner in the earlier case was barred by limitation, shall also operate as a bar on the power of the Labour Court in the present reference case, in granting any relief to the petitioner. It is difficult to accept this contention. It is an admitted position that for a reference under S. 10 of the Industrial Disputes Act, no time limit is fixed, whereas for filing a complaint under S. 26 of the Shops and Establishments Act, a period of limitation has been fixed by S. 26 itself. When there is no time limit for making a reference there can be no issue in the reference case as to whether it is barred by limitation. Once there can be no issue in respect of limitation, in the reference case, I have not been able to appreciate as to how any finding recorded on the question of limitation in the earlier proceeding, shall operate as res judicata, in the present proceeding. It need not be pointed out that for the purpose of attracting the principles of res judicata, the issues in the two proceedings must be common. As such, while holding that other findings recorded in the earlier proceeding are binding between the parties in the present proceeding, I am unable to accept the contention that even the finding that the petitioner was not entitled to relief under section 26 aforesaid as the complaint of the petitioner was barred by limitation, shall operate as a bar in granting compensation in the present proceeding. The Labour Court in the impugned award has, while applying the principles of res judicata, has also held that the findings regarding the limitation shall debar the petitioner to get any compensation, iin the present proceeding. The Labour Court in the impugned award has, while applying the principles of res judicata, has also held that the findings regarding the limitation shall debar the petitioner to get any compensation, iin the present proceeding. That part of the award amounts to an error apparent on the face of it and, accordingly, that part of the award is quashed. 12. Having held that the petitioner is entitled to compensation, now this Court has to consider as to what amount of compensation should be directed to be paid to him. On behalf of the Company, reliance was placed on the case of Hindustan Steels Limited, Rourkela v. A. K. Roy ( AIR 1970 SC 1401 ) : (1970 Lab IC 1166) where the quantum of compensation was computed taking into account the back wages for two years. Reliance was also placed on the case of Peinguine Textiles v. Labour Court, Hyderabad (1975 Lab IC 526) (Andh Pra) arid the case of Management of Biological Evons Ltd., Azamabad, Hyderabad v. Labour Court, Hyderabad (1979 Lab IC 1118) (Andh Pra) where the compensation was computed taking into account three years and two years salary respectively. Again in the case of Ceylon Transport Board v. A. H. Wijaratne (1976-1 Lab LJ 182), the Supreme Court, while observing that the workmen need not be driven to the Labour Court, for determination of the compensation payable to him, directed the Management to pay three months salary to the workman in question. According to the Company, the petitioner on the relevant date was getting Rs. 360/- per month and as such the compensation amount should be calculated on basis of three years salary of the petitioner the period for which he had served before the order of termination. 13. It need not be pointed out that there is no fixed formula for the purpose of computation of compensation in cases like th e one with which we are concerned for the present. The amount of the compensation has to be fixed taking all facts and circumstances of a particular case. From the facts mentioned above, it will appear that the petitioner has been discharged with effect from 4-8-1970 and since then for more than 12 years he has been running from one Court to the other. Reference was made in May 1976. The amount of the compensation has to be fixed taking all facts and circumstances of a particular case. From the facts mentioned above, it will appear that the petitioner has been discharged with effect from 4-8-1970 and since then for more than 12 years he has been running from one Court to the other. Reference was made in May 1976. The Company filed two writ applications before this Court without much success which apparently delayed the disposal of the reference case in question. In the case of Anil Kumar Chakravarty v. Saraswatipur Tea Company Ltd. ( AIR 1982 SC 1062 ) while holding that compensation was an adequate remedy, the Supreme Court pointed out that the workmen concerned was drawing a monthly salary of Rs. 174.60 Ps. at the time of his dismissal from service on 15-9-1965 and that the present rate of salary payable to the workman was still higher and taking note of lapse of time involved since the date of dismissal, a lump sum amount of Rs. 50,000/- was directed to be paid to the workman concerned. In my view, the case of the petitioner is very similar in this respect to the case mentioned above. The petitioner is out of service because of the illegal order of discharge since August, 1970, i. e., for more than 121/2 years. On the date of discharge, he was getting a salary of Rs. 360/- per month and in normal course of event that rate of salary must have been revised. It is an admitted position that if the arrears of the petitioner is calculated even at the rate of Rs. 360/- per month, he shall be entitled to more than fifty thousand of rupees. Any way, taking all the facts and circumstances into consideration, I direct the company to pay to the petitioner a lump sum amount of Rs. 30,000/- (thirty thousand) by way of compensation, which in my opinion, shall be just and fair compensation in full satisfaction of the claim of the petitioner for wrongful discharge from the service of the Company. The payment should be made within three months from today. 14. Accordingly, this writ application is allowed to the extent indicated above. The petitioner shall also be entitled for a consolidated cost of Rs. 500/- (five hundred) only. The payment should be made within three months from today. 14. Accordingly, this writ application is allowed to the extent indicated above. The petitioner shall also be entitled for a consolidated cost of Rs. 500/- (five hundred) only. SATYA BRATA SANYAL, J. 15 I agree with the reasoning as well as the order proposed by my learned brother. But, I would like to add few words in support of the judgment. 16. The impugned award disentitles the petitioner even to the payment of compensation, although he was not found guilty of charges, merely on two grounds : A. As the Labour Court constituted under the Shops & Establishments Act held, the complaint petition to be barred by limitation and the said court did not assess the compensation : and B. The petitioner was Held by the previous Labour Court as not to be a worker under the Factories Act but an employee within the meaning of Bihar Shops & Establishments Act and, therefore, the reference under section 10 (l)(c) of the Industrial Disputes Act is bad. The reasons assigned not to allow compensation, therefore, to my mind, is wholly erroneous. 17 So far as the first question is concerned, my learned brother has dealt with in detail, the principles of res judicata as well as the applicability of the general principles of res judicata and constructive res judicata. The reasoning, that as the compensation was not computed by the Labour Court constituted under the Bihar Shops & Establishments Act, therefore, the present Labour Court is estopped by principles of res judicata to grant compensation, is wholly misconceived. 18. So far as the second question is concerned I am surprised to find that the Labour Court was harping under an impression that if a person is. not a worker he is not a workman under the Industrial Disputes Act. There is a distinction between a worker and a workman inasmuch as a person who works in a factory is known to be a worker and a person who works in a Factory or outside the factory may be a workman. In short, every workman may not be a worker but every worker is a workman. There is a distinction between a worker and a workman inasmuch as a person who works in a factory is known to be a worker and a person who works in a Factory or outside the factory may be a workman. In short, every workman may not be a worker but every worker is a workman. The Labour Court constituted under the Shops & Establishments Act recorded a finding holding the petitioner not a worker only to reject the submission of the management that the complaint petition under section 26 of the Bihar Shops & Establishments Act is not maintainable at the instance of a worker. It is not the case of the company that the petitioner was not a workman within the definition of the Industrial Disputes Act. When such was not the contention even of the Management of the company, I fail to understand the reasoning given by the Labour Court, that since the petitioner is not a factory worker, the reference is bad. Further, this finding of the Labour Court is also in the teeth of the previous decisions of this Court where the parties agreed that the competence of the reference under S. 10(l)(c) of the Industrial Disputes Act will not be questioned by them. 19. Coming to the question of grant of compensation I think the previous Labour Court, having concluded no misconduct on the part of the petitioner, might have thought not proper to allow reinstatement because of the nature of duty performed by the petitioner. The compensation, in that event, is in lieu of reinstatement. It is true, as my learned brother has pointed out, that there is no fixed formula for computing compensation, but certain guidelines could be discernible from the law laid down by the Supreme Court from time to time while granting compensation in lieu of reinstatement. The computation of compensation can neither be too low nor too generous and a balance is required to be struck between the two competitive claims. In my experience, computation of compensation in lieu of reinstatement has always vexed the Tribunals. 20. The computation of compensation can neither be too low nor too generous and a balance is required to be struck between the two competitive claims. In my experience, computation of compensation in lieu of reinstatement has always vexed the Tribunals. 20. In England, on the recommendation of Royal Commission on Trade Union employers Association, a provision for the maximum amount of compensation has been provided in the Industrial Relations Act, 1971, which has now been replaced by Trade Union & Labour Relations Act, 1974, which provides that the maximum compensation payable is £ 5,200. In other countries calculation of compensation is left to the discretion of a competent body and in some other countries factors to be taken into consideration for the exercise of the discretion are indicated, specifying minimum amount of compensation or laying down maximum amount of compensation (See Report of International Labour Office Report III Part 4B to the 59th Session (1974) Page 50, para 97). In the case of Ceylon Transport Board v. A. H. Wigeratne (1976-1 Lab LJ 182), the Supreme Court of Sri Lanka laid down certain principles for awarding compensation in lieu of reinstatement in the following words : "The Labour Tribunal should normally be concerned to compensate the employee for the damages he has suffered in the loss of his employment and legitimate expectation for the future in that employment, in the injury caused to his reputation in the prejudicing of further employment opportunities.... Account should be taken of such circumstances as the nature of the employers business and his capacity to pay, the employees age, the nature of employment, length of service, seniority, present salary, future prospects, opportunities for obtaining similar alternative employment, his past conduct, the circumstances and the manner of dismissal including the nature of charge levelled against the workman, the extent to which the employees action was blame-worthy.... Account should also be taken of any sums paid or actually earned or which should also have been earned since the dismissal took place. The amount however should not be mechanically calculated....." 21. In India from the decided cases with respect to compensation in lieu of reinstatement where the dismissal and discharge has been held to be wrongful, no definite yardstick for measuring the quantum of compensation is available. The amount however should not be mechanically calculated....." 21. In India from the decided cases with respect to compensation in lieu of reinstatement where the dismissal and discharge has been held to be wrongful, no definite yardstick for measuring the quantum of compensation is available. In the case of S. S. Shetty v. Bharat Nidhi Ltd. (1957-2 Lab LJ 696) : ( AIR 1958 SC 12 at P.18), the Supreme Court observed : "In computing the money value of the benefit of reinstatement, the Industrial Tribunal would also have to take into account the present value of what his salary, benefits etc. would be till he attained the age of superannuation and the value of such benefits would have to be computed as from the date when such reinstatement was ordered under the terms of the award... it is impossible to compute the money value of this benefit of reinstatement awarded to the appellant with mathematical exactitude". In the case of Assam Oil Co. Ltd. v. Its Workmen (1960 - 1 Lab LJ 587) : ( AIR 1960 SC 1264 ) where Miss Scott who was in service for about two years, was ordered to be paid two years salary taking into consideration her gainful employment elsewhere and certain other sums received from the company during her suspension. In the case of Utkal Machinery Ltd. v. Shanti Patnaik (1966-1 Lab LJ 398) : ( AIR 1966 SC 1051 ), taking into consideration the unusual manner of the employees appointment and duration of the employees service being only for five months, the Supreme Court awarded compensation of one years salary. In Hindusthan Steels Ltd. (1970 Lab IC 1166) (supra), the duration of service of the concerned workman was only two years. The character-verification report disclosed his continuance of service undesirable. The workman was awarded only two years salary last drawn by the workman. In Chembur Co-operative Industrial Estate Ltd. v. M. K. Chhatra (1975-2 Lab LJ 357) : (1975 Lab IC 1214), the Supreme Court awarded compensation from the date of suspension till the date of award. In Cooper Engineering Ltd. v. P.P. Mundhe (1975-2 Lab LJ 379) : (1975 Lab IC 1441), the Supreme Court converted the order of reinstatement into an order of compensation in terms of the entire salary of the workman from the date of his dismissal to the date of decision of the Supreme Court. In Cooper Engineering Ltd. v. P.P. Mundhe (1975-2 Lab LJ 379) : (1975 Lab IC 1441), the Supreme Court converted the order of reinstatement into an order of compensation in terms of the entire salary of the workman from the date of his dismissal to the date of decision of the Supreme Court. In the case of Management of Monghyr Factory of I. T. C. Ltd. v. Presiding Officer, Labour Court, Patna, (1978 Lab IC 1256) Supreme Court in lieu of reinstatement awarded compensation for five years inclusive of all benefits. In the case of Anil Kumar Chakravarty ( AIR 1982 SC 1062 ) (supra), even though back wages calculated for 7 1/2 years amounted to Rs. 36,000/- and odd, Supreme Court ordered a lump-sum payment of Rs. 50,000/-. In the case of workman of Madurai Co. Ltd. v. Labour Court (1966-1 Lab LJ 498) : ( AIR 1966 Ker 167 ) High Court did not hold to be excessive, the grant of full back wages along with compensation of Rs. 3500/-. It has rightly been said as observed in Blue Star Ltd. v. N. R. Sharma (1977 Lab IC 328) (Delhi), there is no yardstick for quantification of compensation; by the very nature of it, the exercise involves an element of intelligent guess and rule of thumb cannot be altogether excluded." 22. All the same, certain guidelines could be found out from the judicial pronouncement, which has to be borne in mind while computing compensation in lieu of reinstatement. It is needless to say that the question of compensation in lieu of reinstatement ordinarily arises in case of loss of trust/mistrust, incompetence, inefficiency. Reinstatement normally entitles the workman, the entire back wages plus service with benefit of seniority & fitment and revised scales, if any. Very seldom, the court reduces the back wages while granting reinstatement. In the case of G. T. Lad v. Chemical & Fibres India Ltd. ( AIR 1979 SC 582 ) : (1979 Lab IC 290) Supreme Court in view of long delay allowed back wages of 75 per cent from the date of termination till reinstatement, with benefit of revised scales as obtainable from time to time. In the case of G. T. Lad v. Chemical & Fibres India Ltd. ( AIR 1979 SC 582 ) : (1979 Lab IC 290) Supreme Court in view of long delay allowed back wages of 75 per cent from the date of termination till reinstatement, with benefit of revised scales as obtainable from time to time. The broad guidelines which have to be borne in mind while computing compensation in lieu of reinstatement, to my mind, are : (a) The backwages receivable; (b) Compensation for deprivation of the job with future prospect and obtainability of alternative employment; (c) Employees age; (d) Length of service in the establishment; (e) Capacity of the employer and nature of employers business; (f) Gainful employment and mitigation of damages and (g) Circumstances leading to the disengagement and past conduct. I must state that the aforesaid factors are only illustrative and not exhaustive. 23 In the instant case, the back wages themselves comes around Rs. 55,000/- and odd and to this if some compensation is awarded for denying the service to the petitioner, the sum, to which he would be entitled to, would be much higher than what has been actually ordered to be paid. Keeping in view the other considerations referred to above and in view of the entire facts and circumstances of this case, the compensation awarded by my learned brother of a lump sum of Rs. 30,000/- (Rupees thirty thousand) is just and fair.