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2018 DIGILAW 791 (KAR)

Medopharm v. B. V. Sampangi

2018-07-11

A.S.BOPANNA

body2018
ORDER : A.S. BOPANNA, J. 1. The petitioner is before this Court assailing the order dated 18.10.2016 passed in Reference No.7/2013. 2. The petitioner having taken action against the respondent for certain misconduct had filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 ('I.D. Act' for short) seeking approval of the action. The same was registered in Serial Application No.1/2005 and the Labour Court having considered the aspect relating to the fairness of the Domestic enquiry and also the merits of the rival contentions had passed the order dated 09.05.2012 approving the action of the petitioner - Company. However, on such dismissal order dated 10.01.2004 being approved by the Labour Court and the respondent herein being aggrieved by such action of the employer, had raised a dispute under Section 10 of the I.D. Act against said dismissal which is pending before the Second Additional Labour Court in Reference No.7/2013. In the said proceedings, the petitioner - Management had filed the application seeking that the maintainability of the proceedings be considered as a preliminary issue, as a reconsideration on the validity of the domestic enquiry and on merits would amount to res judicata. It is in that light since the application in I.A. No.4 had been filed with regard to the consideration of the preliminary issue, the order dated 18.10.2016 is passed on the said issue. The Labour Court has in that regard arrived at the conclusion that the findings given by the Labour Court in Serial Application No.1/2005 wherein the approval had been granted in the proceedings under Section 33(2)(b) of the I.D. Act will not attract the principles of res judicata in the dispute raised under Section 10 of the I.D. Act by the respondent. The petitioner claiming to be aggrieved by the same is before this Court. 3. Heard the learned counsel for the parties and perused the petition papers. 4. The learned counsel for the petitioner in addition to referring to the decision of the Hon'ble Supreme Court which was cited before the Labour Court has sought to rely on the decision of the Hon'ble Division Bench of this Court in the case of Management of Indian Aluminium Company Ltd., (Presently known as Hindalco Industries Ltd.,) Belgaum, now represented by its Manager Sri. L.N. Prasad v. Nagaiah S. [2009-III LLJ 528]. 5. L.N. Prasad v. Nagaiah S. [2009-III LLJ 528]. 5. In the said proceedings, the Hon'ble Division Bench while taking note of an earlier consideration which was made by the Labour Court under Section 33(2)(b) of the I.D. Act and in that light in the subsequent proceedings under Section 10(4-A) of the I.D. Act has arrived at the conclusion that since the very issue relating to the Domestic Enquiry and the merits would arise for consideration in both the set of proceedings, the principles of res judicata would be attracted and the findings recorded in the 33(2)(b) proceedings would operate as a bar against the plea of no misconduct, as has been claimed by the workman in the subsequent Industrial dispute raised by him under Section 10 of the I.D. Act. In the said proceedings no doubt the enquiry was held to be fair and thereafter the merits of the rival contentions also was considered. 6. In that background while considering as to whether the said decision would conclude the issue, the learned counsel for the respondent would seek to rely on a subsequent decision of another Hon'ble Division Bench of this Court in the case of RPG Cables Limited, v. G.M. Kulkarni [LAWS(KAR) 2012 11 138]. In the said decision also, a question had arisen before this Court with regard to the position of law as to whether the subsequent proceedings under Section 10 of the I.D. Act would be hit by principles of res judicata in view of the findings rendered in the proceedings under Section 33(2)(b) of the I.D. Act. The Hon'ble Division Bench in fact in the said decision has referred to the decision relied by the learned counsel for the petitioner in the case of Nagaiah (supra). Having done so, reference also has been made to the view taken by the Hon'ble Supreme Court and has held that the question of relevance of the principles of res judicata in arriving at a decision in the proceedings initiated by the workmen under Section 10 of the I.D. Act need not even be considered as a preliminary issue since it has held that the same does not amount to res judicata. 7. 7. The learned counsel for the petitioner however seeks to distinguish the said judgment by contending that in the said case the nature of consideration with regard to the enquiry was different and therefore, the earlier decision as relied by him would be more relevant to the facts herein. 8. Though such contention is put forth, ultimately what is required to be taken note is as to whether the proceedings under Section 33(2)(b) wherein the proceedings by the Labour Court would act as res judicata subsequently to the proceedings under Section 10 of the I.D. Act. In the latter judgment, the Hon'ble Division Bench of this Court, after referring to the earlier judgment has held that the same would not amount to res judicata and in that regard has held that the said issue need not be considered as a preliminary issue. Since in the instant case the present issue relates to the preliminary issue which the Labour Court has declined to consider as preliminary issue and such decision being in terms of the order of the Division Bench, I see no reason to interfere with the same. Accordingly, the petition being devoid of merits stands disposed of.