Management of Natraj Cottage Industries, Delhi vs The Presiding Officer, Labour Court, Delhi and Others

Jegjit Singh, J.

(1) The management of Natraj Cottage Industries, Sadar Bazar Delhi asked for issuing a writ of the certiorari an order of the Labour Court dated February 2, 1971.

(2) Through an application u/s 33-C(2) of the Industrial Disputes Act, 19

Wages for nine months 15 days at Rs. 70.00 per month ... Rs. 665.00 Overtime wages for nine months ... Rs. 665.00 Leave wages for two years ... Rs. 70.00 Bonus for two years ... Rs. 67.60

That application was dismissed in default by the Labour Court, Delhi, on March Ii, 19''/0. In the order by which the application was dismissed it was mentioned that Shri D. N. Vohra was present for the management but no one was present on behalf of the workman and even on the last date of hearing no one had appeared for him. In view of the absence of the workman or any one to represent him the application, which had been registered a No. 356 of 1968, was directed to be struck off.

(3) The workman, on March 14, 1970, submitted a fresh application, also u/s 33-C(2) of the Industrial Disputes Act. In that application the amount claimed for wages, overtime v ages, leave wages and bonus was shown to be exactly the same as in the previous application but additional amounts of Rupees 70.00 as pay for one month in lieu of notice period and Rs. 140.00 by way of compensation for four years service at the rate of 15 days wages per year were as well claimed. In all the claim for Rupees 1,677.60 was made.

(4) The management raised a preliminary objection that the previous application (No. 356 of 1968) having been dismissed a fresh application on the same cause of action did not lie. The objection was, however, held not to be tenable by the Labour Court on the ground that there was no bar to the filing of a Second application.

(5) By relying upon a judgment of the Andhra Pradesh High Court in R. Sarojini v. B. Lakshmana Rao. It was contended by Shri D. N. Vohra for the management, before the Labour Court that there was no power to set aside an ex parte order. This contention was not opposed from the other side and was accepted by the Presiding Officer of the Labour Court. The Presiding Officer of the Libour Court, how ever refused to draw an inference that because he had no power to restore the application which had been dismissed for default ho hid also no jurisdiction to entertain a fresh petition substantially on the same causes of action on which the petition dismissed in default had been made It was remarked that the previous application not having been decided on merits and there being no specific bar to the finding of a second application, the subsequent application could be tried.

(6) In this Court reliance was placed by Shri D. N. Vohri, the learned counsel for the management on a judgment of a learned Single Judge of the Madras High Court in Supper Surgical Co. v. S Desikan. In that case a petition u/s 33-C(2) of the Industrial Disputes Act was made by a workman claiming a certain amount under various heads, which was opposed by the management of the firm of which that workman was an employee. When the petition came up for hearing the employee stated that he was not pressing it, on which it was dismissed. Subsequently a fresh petition base I on the same grounds was made to which objection was taken that it was not maintainable. On behalf of the employee it was urged that he had "made an endorsement to the effect that he was withdrawing the petition without prejudice to the right to file a fresh petition" and the fresh petition filed by him was in accordance with the endorsement. The learned Judge repelled the contention by observing that the Labour Court dismissed the petition and neither referred to the endorsement nor granted leave to with draw the petition and to file a fresh petition, it was further observed that under the Industrial Disputes (Central) Rules or the Madras Industrial Disputes Rules the Labour Court was not empowered to grant leave to withdraw the petition with liberty to file a fresh petition and such a power could not therefore be exercised by the Labour Court. As it was not disputed that the principle of res judicata was also applicable to a Labour Court it was held that the Labour Court could not entertain a fresh petition on the same cause of action unless it was empowered to do so.

(7) The above case is clearly distinguishable. In that case the order of dismissal of the petition was made on the statement of the employee concerned that he was not pressing his petition an J there being no power to allow withdrawal of the petition with permission to fib afresh petition on the same grounds the dismissal of the petition hid to be treated as on merits The principle of rest judicate was, Therefore, applicable and in the absence of a provision for entertaining a fresh petition the objection regarding non-maintainability of the fresh petition had to be accepted. In the present case the dismissing not being on merits but clearly in default there was no question of applying the principle of res judicata.

(8) As already stated above the Labour Court held that it had no power to restore the previous application dismissed in default. In that Court or even before me the correctness of that view was not dispute I from either side. The Labour Court not having the power to restore the application dismissed in default it did not follow that even a fresh application on substantially the same grounds was not maintainable. The dismissal of the application on March 11, 1970 being in default of the appearance of the applicant or any one on his behalf, the order of dismissal was evidently not on meris and the principle of res judicata could have no application. The fresh application would only hive been barred if there was a specific provision to that effect. There being no provision either in the Industrial Disputes Act or the Industrial Disputes (Central) produce whose earlier application u/s 33-C(2) of the Industrial Disputes Act was dismissed in default from filing a fresh application even on the same grounds, the view taken by the Labour Court was, in my opinion correct. The petition filed on behalf of the management of Natraj Cottage Industries is, Therefore, dismissed. In the circumstances of the case I make no order as to costs.