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Allahabad High Court · body

2016 DIGILAW 2067 (ALL)

UNION CARBIDE INDIA LTD. v. STATE OF U. P.

2016-05-27

RITU RAJ AWASTHI

body2016
JUDGMENT Hon’ble Ritu Raj Awasthi, J.—At the very outset, it is to be noted that the instant writ petition remained pending in the High Court for the last approximately 35 years and it is one of the oldest cases in this jurisdiction. After much persuasion, I was able to get the lawyers of both sides agree to argue the matter so that it is decided finally on merit. 2. Heard Ms. Aprajita Bansal, learned counsel for the petitioners, learned Standing Counsel for opposite parties No. 1, 2 and 3 and Mr. R.K. Srivastava for opposite party No. 4. 3. It is informed by learned counsel for the petitioners that the writ petition was dismissed in default vide order dated 14.3.2016, against which she has preferred application for recall (C.M. Application No. 32674 of 2016) within time. 4. The cause shown in the affidavit filed in support of the application is sufficient to recall the order. 5. The application is allowed. The Order dated 14.3.2016 is hereby recalled. The writ petition shall stand restored to its original number. 6. Now, with the consent of parties’ counsel, I proceed to decide the case finally on merit. 7. The instant writ petition is directed against the award of respondent No. 1, out of two references made by the State Government under Section 4-K of the U.P. Industrial Disputes Act, 1947, read with Sections 22 and 39 of the Payment of Bonus Act, 1965 by notification dated 8.9.1981 and 27.8.1981. Two references were registered as Adjudication Case Nos. 16 and 79 of 1981. The impugned award dated 30.8.1983 is annexed as Annexure-1 to the writ petition. 8. The petitioner No. 1 is a Company, registered under the Companies Act, whereas the petitioner No. 2 is an industrial establishment owned by petitioner No. 1 and is engaged in manufacturing of flash lights which are marketed under the trade name ‘Eveready’ and other trade marks. Under Section 46 of the Factories Act, 1948, it is obligatory on the part of the the occupier of a factory wherein 250 or more employees are employed to maintain a canteen. Section 92 of the Act makes the breach punishable. The petitioner No. 1, therefore, was obligated by virtue of statute to provide for a canteen within its premises and for the same he gave the contract to independent contractors to provide canteen services to its employees. 9. Section 92 of the Act makes the breach punishable. The petitioner No. 1, therefore, was obligated by virtue of statute to provide for a canteen within its premises and for the same he gave the contract to independent contractors to provide canteen services to its employees. 9. As per given facts of the case, in 1970 contract was considered for running a canteen in the premises and on 25.2.1970 it was awarded to one Mr. Louis Novascek. The terms and conditions clearly recognizes Mr. Novascek as Contractor. In April 1975, Mr. Novascek went away and his supervisor Mr. B.D. Singh was allowed to look after the canteen. On 8.11.1975 a fresh contract was entered into with Mr. S.P. Yadav for running the canteen. The terms were identical to that of Mr. Novascek. The responsibility of carrying out the requisite legal obligation including a license was that of Mr. Yadav. In the year 1974, 1975, 1976 the demands of bonus by the employees and canteen contractor were raised for the first time. The employees of the canteen continued to demand bonus from the petitioner No. 2 i.e. factory owner. 10. An Adjudication Case No. 29 of 1980, for demand of bonus raised for the year 1974, 1975 and 1976, was preferred before the Industrial Tribunal. The employees of the canteen contractor were represented by respondent No. 4 i.e. Eveready Flash Light Karmchari Sangh, Lucknow, whereas on the other side employer was represented by petitioner No. 2. On 27.4.1981 the award was given in favour of the petitioner No. 2 holding that the workmen of the canteen were the employees of the contractor and not the employees of the company. The demand of bonus from petitioner No. 2 was rejected. The award was challenged by opposite party No. 4 by means of Writ Petition No. 5120 (SS) of 1980. This writ petition was admitted vide order dated 18.5.1982. It was dismissed for non-prosecution vide order dated 1.3.2005, however, on an application moved by the petitioner it was restored to its original number vide order dated 22.5.2007. This writ petition was again dismissed for want of prosecution vide order dated 14.3.2016. This time no application for recall of order has been preferred by the petitioner till date. The paper book of Writ Petition No. 5120 (SS) of 1981 is connected with the instant writ petition. This writ petition was again dismissed for want of prosecution vide order dated 14.3.2016. This time no application for recall of order has been preferred by the petitioner till date. The paper book of Writ Petition No. 5120 (SS) of 1981 is connected with the instant writ petition. No application for recall of order dated 14.3.2016 has been preferred, as such, the Writ Petition No. 5120 (SS) of 1981 stands dismissed. 11. In the year 1977 and 1978, the years in question, again a demand of bonus was raised by the employees of the canteen contractor. Adjudication Case Nos. 16 and 79 of 1981 on two references made by the State Government, as noted above, were registered. The Industrial Disputes Tribunal has allowed the adjudication case in favour of the employees holding that the employees of the canteen are in fact the employees of the company, they are automatically entitled to the same bonus as the other workmen of the company, namely 20 per cent of the wages being paid to the various workmen. In other words, the bonus shall be in accordance with Section 11 of the Payment of Bonus Act, 1965. 12. Learned counsel for the petitioner has basically raised her arguments mainly on two grounds. Firstly, it is submitted that despite the fact that the parties were same, the dispute was same, i.e. the demand for bonus by the employees of the canteen contractor from petitioner No. 2, treating themselves to be employees of petitioners, which has been rejected by the Industrial Disputes Tribunal in Adjudication Case No. 29 of 1980, however, by the impugned award the Industrial Tribunal has grossly erred in holding that the employees of the canteen contractor were in fact employees of the petitioner No. 2 and hence entitled to get the bonus in the same terms as admissible to the employees of the petitioner No. 2. 13. Submission is that Adjudication Case Nos. 16 and 79 of 1981 were barred by principles of res judicata. The objection in this regard was raised before the learned Tribunal, however, the Tribunal has failed to appreciate that the award passed in the previous Adjudication Case No. 29 of 1980 by the learned Tribunal is a judicial pronouncement and acts as res judicata in the subsequent proceedings as expressed in the maxim “interest rei publicae ut sit finis litium”. 14. 14. It is vehemently contended by learned counsel for the petitioners that earlier dispute was also raised by the workmen of canteen demanding bonus from the petitioner No. 2. In that dispute the learned Tribunal came to conclusion that the workmen were the employees of the canteen contractors and not the employees of petitioner No. 2 and hence demand for bonus was rejected. In the demand for subsequent years the status of the employees was not changed in any manner and the parties to the dispute were the same. The issue before the learned Tribunal was also identical in nature and the facts and circumstances remained the same, as such, the findings recorded by the learned Tribunal in the earlier Adjudication Case No. 29 of 1980 were to be followed until and unless they were upset by the higher Court. The Writ Petition No. 5120 (SS) of 1981 preferred by opposite party No. 4 in this regard has been dismissed and, as such, the findings recorded by learned Tribunal have attained finality and are binding on the parties concerned. It is submitted that the principles underlying in the rule of res judicata, expressed in the maxim “interest rei publicae ut sit finis litium” founded on sound public policy and is of a universal application. One important consideration of the public policy is that the decision pronounced by the Courts of competent jurisdiction should be final unless they are modified or reversed by appellate authorities and the other principles that no one should made to face the same kind of litigation twice over because such a process would be contrary to the consideration of fair play and justice. It is also submitted that the learned Tribunal has wrongly interpreted that the judgment given in the case of Workmen of the Straw Board Manufacturing Co. Ltd. v. Straw Board Manufacturing Co. Ltd., (1974) 4 SCC 681 , cited by the petitioner in their favour on the issue of the present proceedings being barred by principles of res judicata and came to conclusion that extremely technical considerations should not be allowed to out-weight substantial justice to the parties in an industrial adjudication. Ltd. v. Straw Board Manufacturing Co. Ltd., (1974) 4 SCC 681 , cited by the petitioner in their favour on the issue of the present proceedings being barred by principles of res judicata and came to conclusion that extremely technical considerations should not be allowed to out-weight substantial justice to the parties in an industrial adjudication. The learned Tribunal has failed to appreciate that the matter in dispute in the present adjudication had earlier been directly and substantially in issue between the same parties and the same had been heard and finally decided by the learned Tribunal and therefore the principles of res judicata is fully attracted. 15. It is contended that the findings of learned Tribunal in this regard can rightly be said to be on complete unsound and incorrect understanding of the same. Learned Tribunal has failed to take into consideration that the terms of contract for running the canteen by the independent contractor were identical in the year 1977-78 as in the earlier year 1974, 1975 and 1976 and the fact that the contractor subsequently acquired a license under the Contract Labour (Regulation and Abolition) Act which came into existence in 1970 which nowhere bars the application of principles of res judicata as the parties to the dispute and the nature and issue were identical and substantively decided in an earlier adjudication. 16. Secondly, it has been argued by learned counsel for the petitioner that the finding of the learned Industrial Tribunal that the employees of the canteen are not employees of the independent contractor but of principal employer i.e. the petitioner No. 2 is totally perverse and wrong. This issue was also settled by the learned Industrial Tribunal previously in Adjudication Case No. 29 of 1980. 17. Submission is that the contract for providing canteen service was a contract FOR service and not OF service. The petitioner No. 2 by virtue of statute under the Factories Act, 1948 was to provide for canteen within its factory premises, however, the liability of the principal employer in this regard was very limited. It was not with respect to the workmen employed by the independent contractor in the canteen. The workers employed by the contractor in the canteen do not ipso facto becomes employee of the principal employer. It was not with respect to the workmen employed by the independent contractor in the canteen. The workers employed by the contractor in the canteen do not ipso facto becomes employee of the principal employer. Learned Industrial Tribunal has failed to consider the following facts : 1- That Sri S.P. Yadav proprietor of Sushil Catering Services was not only providing canteen services in the premises of the Petitioner No. 2, but also providing canteen services to other example T.V. Centres, U.P. Agro, Sales Tax Office, United Bank at Lucknow. 2- That the canteen contractor was registered under the Shop and Commercial Establishment Act, 1958. He had a license under the Contract Labour (Regulation and Abolition) Act, 1970. 3- That the contractor is completely responsible for all conditions of service including those of grant of leave, disciplinary action, termination, removal, dismissal etc. The wages were paid directly by him to the workmen. A memorandum of settlement under Section 4-F of the Uttar pradesh Industrial Disputes Act, 1947 and Rules 4 and 5 of the Uttar Pradesh Industrial Disputes Act, 1957 and conciliation was arrived at between Sushil Catering Services and all employees working in the canteen run by the former. This settlement was with regard to the revision in wages of the workmen employed in the canteen. This settles the fact that wages were being paid by the canteen contractor to the employees appointed by him. 4- That the canteen contractor was the one who granted permission for leave to the workmen employed by him in the canteen. 5- That the canteen contractor also paid the provident fund and ESI contribution to the respective authorities. The code given is UP/1828. It is pertinent to state at this juncture that the independent contractor had previously applied for a separate code other than that of the company which is code No. 21-1301-90, but the same was rejected, however later the canteen contractor was given a separate code (UP/1828). It may be pointed out here that the said issue of having the same code was never raised by the workmen before the Industrial Disputes Tribunal. 6- That for the subsequent years i.e. 1979, 1980, 1981 the contractor looking to his profit had paid bonus to his employees working in the canteen. It may be pointed out here that the said issue of having the same code was never raised by the workmen before the Industrial Disputes Tribunal. 6- That for the subsequent years i.e. 1979, 1980, 1981 the contractor looking to his profit had paid bonus to his employees working in the canteen. In reply to the said paragraph the Respondent No. 4 have said that the fact that bonus was paid for the subsequent years by the character do not vitiate their claim for bonus for the year in question 1977-78, thereby admitting to fact that bonus was paid in subsequent years by the canteen contractor. 7- That it is also necessary to state that the Petitioner No. 2 was also registered as principal employer under the Contract Labour (Regulation and Abolition) Act, 1970. 8- That the terms of contract given in the contract between the canteen contractor and the Petitioner No. 2 are completely in tune with the conditions given in the Factories Act, 1948 and the Rules made thereunder. The canteen managing committee was functioning and was consulted by the canteen contractor as provided in the Factories Rules. The contractor in the terms of contract was required to comply with all necessary labour laws and was required to maintain proper accounts. The canteen was managed and run by the contractor in accordance with the terms set out in the contract. 18. In support of her submissions, learned counsel for the petitioner has relied on the judgment of Hon’ble Apex Court in the case of (I) General Manager (OSD), Bengal Nagpur Cotton Mills, Rajnandgaon v. Bharatlal and another, (2011) 1 SCC 635 (paras 10 to 14) and (II) Balwant Rai Saluja v. AIR India Limited, (2014) 9 SCC 407 , wherein the Hon’ble Supreme Court has held that for the workmen engaged by a contractor to work in a statutory canteen of a factory to be called the employees of the factory, they would need to satisfy the test of employer-employee relationship. 19. At the end, Ms. 19. At the end, Ms. Aprajita Bansal, learned counsel for the petitioners has pointed out that the petitioners have filed a supplementary-affidavit, bringing on record the fact that the opposite party No. 4/Eveready Flash Light Karmchari Sangh, Lucknow, who is espousing the cause of the canteen workmen is no more a recognized trade union of the workers in the petitioner-Company and has no right to contest the case any more on behalf of the canteen workmen. 20. Dr. R.K. Srivastava, learned counsel for opposite party No. 4, on the other hand, contended that the question as to whether the references made by the State Government which have been registered as Adjudication Case Nos. 16 and 79 of 1981 were barred by principles of res judicata, has been considered by the learned Tribunal and the learned Tribunal while dealing with the references has framed certain issues in this regard. Learned Tribunal considering the objections raised by the petitioners has come to conclusion that although the principles of res judicata applies to labour and industrial disputes, however, the real character of the controversy between the parties is the determining factor and in complex and modified human relations between labour and capital, giving rise to diverse kinds of ruptures of varying manners, no cast from rule can be laid down. Extremely technical considerations, usually invoked in civil proceedings, should not be allowed to outweigh substantial justice to the parties in an industrial adjudication. 21. It is submitted that the learned Tribunal has rightly come to conclusion that in the given facts the principle of res judicata would not apply as firstly the earlier adjudication was for the years 1974, 1975 and 1976, while present references are for the years 1977 and 1978, and secondly, no evidence seems to have been produced, and if it was produced it has not been discussed as to how the device of having a contractor to run the canteen which was nothing but a sort of camouflage to conceal the status of the contractor and his real role in acting as a stooge of the company to deprive the workmen of their rightful award was evolved by the employers. Learned Tribunal has also come to conclusion that there existed employer-employee relationship, hence, the provisions of Payment of Bonus Act, 1965 were fully attracted. Learned Tribunal has also come to conclusion that there existed employer-employee relationship, hence, the provisions of Payment of Bonus Act, 1965 were fully attracted. All these facts of the case clearly go to show that the contractor was not independent but an employee of the Company and getting salary for his services. 22. It is submitted that in a number of decisions the Hon’ble Apex Court has consistently held that the workmen engaged in a statutory canteen are employees of the principal employer and very often employers are resorting to subterfuge by trying to show that their employees are in fact the employees of contractor in order to overcome their liabilities under the labour laws. In support of his submissions, learned counsel for opposite party No. 4 has relied on the following judgments : (I) Bhilwara Dugdh Utpadak Sahakari Sangh. Ltd. v. Vinod Kumar Sharma Dead by Lrs. and others, Civil Appeal No. 2585 of 2006, decided on 1.9.2011. (II) The Saraspur Mills. Co. Ltd. v. Ramanlal Chimanlal and others, Civil Appeal No. 1957 of 1968, decided on 12.4.1973. (III) M/s. Poddar Mills Ltd. v. Bhagwan Singh and another, Civil Appeal No. 2084 of 1968, decided on 25.4.1973. (IV) M/s. Basti Sugar Mills Ltd. v. Ram Ujagar and others, AIR 1964 SC 355 . (V) M/s. J.K. Cotton Spinning and Weaving Mills. Co. Ltd. v. The Labour Appellate Tribunal of India, IIIrd Branch, Lucknow and others, AIR 1964 SC 737 . (VI) Singh Engineering Works (P) Ltd. v. Industrial Tribunal (I), Allahabad and others, Civil Misc. Writ Petition Nos. 56 and 57 of 1960, decided on 28.4.1961. (VII) Coates of India Ltd. v. Fourth Industrial Tribunal, West Bengal and others, Matter No. 574 of 1979, decided on 22.4.1980. 23. I have considered the submissions made by parties’ counsel and gone through the records. 24. First and foremost question for consideration is whether the dispute raised before the Industrial Disputes Tribunal vide notification dated 8.9.1981 and 27.8.1981, registered as Adjudication Case Nos. 16 and 79 of 1981 was barred by principles of res judicata. 25. It is the settled legal proposition that the principles of res judicata would broadly be applicable to an industrial and labour dispute. The principles of res judicata has been discussed in various judgments of the Hon’ble Apex Court as well as this Court, from time to time. 16 and 79 of 1981 was barred by principles of res judicata. 25. It is the settled legal proposition that the principles of res judicata would broadly be applicable to an industrial and labour dispute. The principles of res judicata has been discussed in various judgments of the Hon’ble Apex Court as well as this Court, from time to time. In the case of Burn & Company, Calcutta v. Their Employees, 1957 AIR 38 : 1956 SCR 781 , it was laid down by Hon’ble Apex Court that the award of an Industrial Tribunal is intended to have a long term of operation and it can be reopened under Section 19 (6) of Industrial Disputes Act, 1947 only when there has been a material change in the circumstances on which it was based. In the above mentioned case it has been observed as under : “An award of an Industrial Tribunal is intended to have a long term of operation, and can be reopened under Section 19(6) of the Industrial Disputes Act-XIV of 1947 only when there has been a material change in the circumstances on which it was based. To hold otherwise would be to defeat the two basic objects which all industrial legislations have in view, namely, to ensure to the workmen, a fair return for their labour and to prevent disputes between the employers and employees, so that production might not be affected and the interests of the society might not suffer. That although the rule of res judicata as enacted by Sectioin 11 of the Code of Civil Procedure does not in terms apply to such an award, its underlying principle which is founded on sound public policy and is of universal application must apply.” 26. In the case of Workmen of the Straw Board Manufacturing Co. Ltd. v. Straw Board Manufacturing Co. Ltd. (supra) the Hon’ble Supreme Court has observed in paragraphs 27 and 28 of the judgment as under : “27. It is now well established that, although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code of Civil Procedure, however, are applicable, wherever possible, for very good reasons. It is now well established that, although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code of Civil Procedure, however, are applicable, wherever possible, for very good reasons. This is so since multiplicity of litigation and agitation and re-agitation of the same dispute at issue between the same employer and his employees will not be conducive to industrial peace which is the principal object of all labour legislation bearing on industrial adjudication. But whether a matter in dispute in a subsequent case had earlier been directly and substantially in issue between the same parties and the same had been heard and finally decided by the Tribunal will be of pertinent consideration and will have to be determined before holding in a particular case that the principles of res judicata are attracted. 28. The learned counsel faced with the problem drew our attention to rule 18 of the U.P. Industrial Tribunal and Labour Courts Rules of Procedure, 1967, which provides that after the written statements and rejoinders, if any, of both the parties are filed and after examination of parties, if any, the Industrial Tribunal or Labour Court may frame such other issues, if any, as may arise from the pleadings. It is clear that these issues are framed by the Tribunal to assist in adjudication. While it cannot be absolutely ruled out that in a given cases judicata, the heart of the matter will always be : What was the substantial question that came up for decision in the earlier proceedings ? Some additional issues may be framed in order to assist the Tribunal to better appreciate the case of the parties with reference to the principal issue which has been referred to far adjudication and on the basis of which, for example, as to whether it is an industrial dispute or not, the jurisdiction of the Tribunal will have to be determined. The reasons for the decision in connection with the adjudication of the principal issue which has been referred to for adjudication and on the basis of res judicata. The earlier question at issue must be, relevant and germane in determining the question of res judicata in the subsequent proceedings. The reasons for the decision in connection with the adjudication of the principal issue which has been referred to for adjudication and on the basis of res judicata. The earlier question at issue must be, relevant and germane in determining the question of res judicata in the subsequent proceedings. The real character of the controversy between the parties is the determining factor and in complex and manifold human relations between labour and capital giving rise to diverse kinds of ruptures of varying nuances no cast-iron rule can be laid down.” 27. In the case of Bombay Gas Co. Ltd. v. Jagannath Pandurng and others, (1975) 4 SCC 690 , the question of payment of overtime wages under the provisions of Section 18 (3) of Bombay Shops & Establishments Act was under consideration. The Hon’ble Apex Court has held that the doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of Code of Civil Procedure, but to all litigation. It proceeds on the principle that there should be no unnecessary litigation and whatever claims and defences are open to the parties should all be put forward at the same time provided no confusion is likely to arise by so putting forward all such claims. Para 11 of the aforesaid judgment on reproduction reads as under : “11. The question however remains whether they are entitled to be paid overtime wages under the provisions of Section 12(3) of the Bombay Shops & Establishments Act. That Act was in force when the award under consideration was given. It is not correct to say that the workers are entitled to overtime payment by virtue of an amendment made to the Act in 1970. The 1970 amendment had nothing to do with the right of payment of overtime wages. The contention on behalf of the company is that the right to overtime wages based on any ground what soever should he deemed to have been dealt with and rejected by the Tribunal which gave the award in 1 950. Though the demand for overtime wages was in general terms it could have been or it ought to have been supported either as one of the items of industrial dispute or as flowing from out of the provisions of the Factories Act or flowing from the provisions of the Bombay Shops and Establishments Act. Though the demand for overtime wages was in general terms it could have been or it ought to have been supported either as one of the items of industrial dispute or as flowing from out of the provisions of the Factories Act or flowing from the provisions of the Bombay Shops and Establishments Act. It was the duty of the party making the demand, who tried to justify the demand, to support it on any one of the alternative basis. They could not have been ignorant of the provisions of the Bombay Shops & Establishments Act. (Incidentally, though in this case it seems to have been conceded on behalf of the company that the workers are governed by the Bombay Shops & Establishments Act, it is contended on behalf of the. company that the concession should be deemed to have been made only for the purpose of this case and not for all purposes). It is further contender that the demand for overtime were under the provisions of the Bombay Shops and Establishments Act should be deemed to be barred on principles analogous to those of the rejudicata. Reliance is placed upon the decision of this Court in Bombay Gas Co. v. Shridhar Bhau(1). But in that case the question whether the workmen should get overtime wages in the same way as the workmen governed by the Factories Act had been considered in the reference which resulted in the award of 1953 and before the Tribunal it was conceded by the workmen that they were not governed by the Factories Act and the claim for the same overtime wages as those Payable to workers under the Factories Act was based on the ground that there was no reason for any distinction between the two sets of workmen. It was. therefore, held that ‘so long as the award remains in force it must be held that these workmen are not governed by the Factories Act and are not entitled to the benefits thereof’. In the present case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime wages under the provisions of the Bombay Shops & Establishments Act. In the present case also the question under the Factories Act had been considered but not the question whether they are entitled to overtime wages under the provisions of the Bombay Shops & Establishments Act. We consider that the workmen could and ought to have raised the question that even if they were not entitled to claim overtime wages at the same rate as payable to workers governed by the Factories Act, they should at least be paid the same rate as those payable to persons governed by the Bombay Shops & Establishments Act. The workers neither put forward the contention that they were entitled to the benefit of the Bombay Shops & Establishments Act nor even that on considerations similar to those applicable to the persons governed by the Bombay Shops & Establishments Act they should also be paid overtime wages under the provisions of that Act. Incidentally it shows that the question as to whether the Bombay Shops & Establishments Act is applicable to those workmen has been raised for the first time in these proceedings. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure 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 it the same time provided so confusion is likely to arise by so putting forward all such claims. It was observed by this Court in Devilal Modi v. Sales Tax Officer; (1965) 1 SCR 686 : AIR 1965 SC 1150 : (1965) 15 STC 303. “The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by Courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide: Daryao and others v. The State of U.P and others [ 1962 (1) SCR 574 : AIR 1961 SC 1457 . We are therefore of opinion that the question of overtime wages should be deemed to have been dealt with and disposed of by the Tribunal on whatever the basis of the claim for overtime wages may be.” 28. In the case of The Punjab Co-operative Bank Ltd. v. R.S. Bhatia (Dead) through L.Rs., (1975) 4 SCC 696 , it has been held that the issue which has been decided in the earlier proceedings in an industrial dispute between the same parties, the said issue is barred by res judicata. The para 5 judgment in this regard is reproduced hereinbelow : “5. The first point urged on behalf of the appellant is that the respondent was not a workman within the meaning of the Act and that the Labour Court committed an error in saying that there was no evidence led on this issue and resting its judgment on the principles of res judicata on the basis of the decision of Shri Kaul in I.D. No. 66/1962. In our opinion the Labour Court rightly applied the principles of res judicata to the issue whether the respondent was a workman or not within the meaning of the Act. The same parties in I.D. No. 69/1962 joined issue on the aforesaid question. A decision given by the competent Labour Court in that regard has rightly been held as a bar on the principles of res judicata in the trial of the same issue in the present proceeding. Moreover, we find that even apart from the previous order operating as res judicata, practically there was no evidence on behalf of the appellant in support of its case that the respondent was not a workman. The only evidence of M.W. 1 was that in his capacity as an Accountant the respondent used to sign the salary bills of the staff including himself. But then he further stated that these bills used to be submitted to the Head Office of the Bank. The accountant is supposed to sign to the salary bills of the staff even while performing the duties of a clerk. That did not make the respondents “employed mainly in a managerial or administrative capacity,” within the meaning of sub Clause (iii) of the Clause (s) of Section 2 of the Act. The accountant is supposed to sign to the salary bills of the staff even while performing the duties of a clerk. That did not make the respondents “employed mainly in a managerial or administrative capacity,” within the meaning of sub Clause (iii) of the Clause (s) of Section 2 of the Act. The witness further stated that during the period of his accountancy as well as the managership (meaning thereby the officiating managership) the respondent conducted himself as an officer and the Bank authorities also treated him as such. There was no proof produced to show any entrustment of managerial or administrative duty to the respondent while he was working as a more Accountant. In South Indian Bank v. A.R. Chacko, (194) 5 SCR 625, it has been pointed out at pages 631 and 632 that there are Accountants in Banks who are really officers and there are other types of Accountants who are merely senior clerks with supervisory duties. The respondent was merely a senior clerk doing mainly clerical duties and had no duty assigned to him of a managerial or administrative nature. It may further be added that relying upon the order of Shri Kaul the Labour Court held in the present proceeding that the respondent was an officiating Manager and hence not a workman from October 9, 1958 to April 4, 1961. The claim for that period has been disallowed in that ground alone.” 29. In the case of Pondicherry Khadi & Village Industries Board v. P. Kulothangan and another, (2004) 1 SCC 68 , the Hon’ble Apex Court has held that principles of res judicata in industrial dispute are applicable provided the Court trying the subsequent proceeding is satisfied that the earlier Court was competent to dispose of the proceedings and the matter has been heard and finally decided. Paras 10 and 11 of the judgment are reproduced below : “10. In our opinion, the appellant has correctly contended that the industrial dispute pertained to the same subject-matter dealt with in the earlier writ proceedings and was barred by the principles of res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code, are applicable1 including the principles of constructive res judicata. It is well established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principles of res judicata laid down under Section 11 of the Code, are applicable1 including the principles of constructive res judicata. Thus in State of U.P. v. Nawab Hussain2, it was held that the dismissal of a writ petition challenging disciplinary proceedings on the ground that the charged officer had not been afforded reasonable opportunity to meet the allegations against him, operated as res judicata in respect of the subsequent suit in which the order of dismissal was challenged on the ground that it was incompetently passed. This Court also held: “....it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process. 11. The principle of res judicata operates on the Court. It is the Courts which are prohibited from trying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding is satisfied that the earlier Court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on the merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and another, (1978) 3 SCC 119 : 1978 SCC (L&S) 438; Smt. Pujari Bai v. Madan Gopal (dead) Lrs., (1989) 3 SCC 433 : AIR 1989 SC 1764 . The “lesser relief of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to re-agitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and re-decide the matter in the face of the earlier decision of the High Court in the writ proceedings.” 30. In the present case, the demand for bonus for the years 1974, 1975 and 1976 was adjudicated in Adjudication Case No. 29 of 1980. The parties to the case were the same as in the demand raised for bonus for the subsequent years i.e. 1977 and 1878. The demand was made on behalf of the workmen of the canteen demanding bonus from the principal employer. In Adjudication Case No. 29 of 1980 the Industrial Tribunal vide award dated 27.4.1981 held that the workmen of the canteen were the employees of the contractor and not the employees of principal employer-Company. The demand of bonus from petitioner No. 2 was rejected. The writ petition preferred against the said order has been dismissed and the award dated 27.4.1981 has attained finality. 31. For the subsequent years 1977 and 1978, again a demand of bonus was raised by the employees of the canteen contractor for which Adjudication Case Nos. 16 and 79 of 1981 were registered. The Industrial Disputes Tribunal this time by impugned award allowed the adjudication cases in favour of the employees holding that the employees of the canteen are in fact the employees of the principal employer-company, they are automatically entitled to the same bonus as is admissible to the workmen of the Company. 32. Learned counsel for the petitioners has argued that the status of the workmen of the canteen was the same during the period 1974, 1975 and 1976 as well as during the period 1977 and 1978 and there was no difference in their status during these period. The terms and conditions of employment were the same and the canteen contractor as well as occupier of the Company were also the same. The terms and conditions of employment were the same and the canteen contractor as well as occupier of the Company were also the same. The issue before the Industrial Disputes Tribunal as to whether the employees of the canteen were entitled to get the bonus for the year 1974, 1975 and 1976, treating them to be the employees of the principal employer, was decided in favour of petitioner No. 2 and it was held by the Industrial Disputes Tribunal that the workmen of the canteen were the employees of the contractor and not the employees of the Company. The demand of bonus from petitioner No. 2 was accordingly rejected. The operative portion of award dated 27.4.1981 in Adjudication Case No. 29 of 1980 is reproduced hereinbelow : “For the discussion in the above, the workmen employed in the Canteen are not entitled to get bonus from the occupier of the Company’s factory or from the company. In the result, their claim for bonus is dismissed. They are not entitled to any relief. In the circumstances, cost shall be borne by the parties.” 33. Learned counsel for the opposite parties has not been able to point out as to how and in what manner the issue before the Industrial Tribunal in Adjudication Case Nos. 16 and 79 of 1981 was different than the issue before the Industrial Disputes Tribunal in Adjudication Case No. 29 of 1980. In fact the issue before the learned Tribunal in Adjudication Case Nos. 16 and 79 of 1981 was the same as in Adjudication Case No. 29 of 1980. 34. In view of broad principles of res judicata, as discussed above, and has been elaborated in various judgments of Hon’ble Apex Court, I am of the considered view that the learned Tribunal has grossly erred in coming to conclusion that the issue in Adjudication Case Nos. 16 and 79 of 1981 was different from the issue in Adjudication Case No. 29 of 1980 and not barred by res judicata. 16 and 79 of 1981 was different from the issue in Adjudication Case No. 29 of 1980 and not barred by res judicata. The issue with respect to payment of bonus to the employees of the canteen contractor for the years 1974, 1975 and 1976 as well as for the years 1977 and 1978 was one and the same except the change of years and once the Industrial Tribunal has decided the Adjudication Case No. 29 of 1980, rejecting the claim of employees and holding that they are the employees of the contractor, the Industrial Disputes Tribunal has erred in deciding the issue contrary to the earlier decision. The principles of res judicata does not permit a judicial forum to decide the same issue which has been decided earlier by judicial pronouncement unless and until the same has been set aside or upset by a higher judicial forum 35. In view of above, I am of the considered view that the impugned award is not sustainable in the eyes of law. 36. Before parting with the judgment, it is necessary to observe that in order to find out whether the workmen engaged in an establishment are the employees of the principal employer or not, the Court has to see whether there exist the employer-employee relationship between them or not. 37. The judgment cited by learned counsel for the opposite parties basically relate to the aforesaid proposition wherein the Hon’ble Apex Court has laid down that the workmen engaged by a contractor to work in a statutory canteen of a factory to be called the employees of the factory, they would need to satisfy the test of employer-employee relationship. 38. In the instant case, since the learned Tribunal in the earlier proceedings i.e. in Adjudication Case No. 29 of 1980 has held that the employees of the canteen were not the employees of the petitioner No. 2 and they were employees of the contractor, as such, there was no employer-employee relationship between the workmen and petitioner No. 2, as such, it was wrong on the part of the learned Tribunal to hold that their existed the employer-employee relationship between them. The impugned award, as such, is also wrong on this score. 39. The impugned award, as such, is also wrong on this score. 39. It is also to be noted that the petitioners through the supplementary-affidavit have brought on record the relevant material fact that the opposite party No. 4/Eveready Flash Light Karmchari Sangh, Lucknow, is no more a recognized trade union of the workers in the petitioner-Company and they have no right to espouse the cause on behalf of the canteen workmen. The canteen workmen were neither party before learned Tribunal nor impleaded as party before this Court, as such, in any case, the stand taken by opposite party No. 4, at this stage, cannot be appreciated. 40. In view of above, the writ petition is allowed. The impugned award dated 30.8.1983 in Adjudication Case Nos. 16 and 79 of 1981, as contained in Annexure-1 to the writ petition is set aside. ——————