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PETITIONER: BHARAT BARREL & DRUM MANUFACTURINGCOMPANY PVT. LIMITED

       Vs.

RESPONDENT: BHARAT BARREL EMPLOYEES UNION

DATE OF JUDGMENT09/04/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1987 AIR 1415            1987 SCR  (2) 825  1987 SCC  (2) 591        JT 1987 (2)    87  1987 SCALE  (7)716

ACT:     Industrial  Disputes  Act,  1947--Ss.  10, 25F  &  25FFF --Res  judicata--Doctrine  of--Applicability  to  industrial disputes--Whether  a person is or not an employee cannot  be reagitated  in  a later industrial dispute if  it  has  been finally decided in an earlier dispute.

HEADNOTE:     In the factory of the appellant-Company there were about 1100  permanent as well as temporary workmen. On account  of non-availability  of  raw  materials  and  other  compelling circumstances  the appellant-Company issued a  ’closure  no- tice’  dated September 30, 1971 intimating all  its  workmen that  their services would stand terminated due to the  clo- sure  of the factory with effect from November 1,  1971  and that  they would be paid compensation under s. 25FFF of  the Industrial  Disputes  Act,  1947.  Thereafter,  the  workmen indulged  in  go slow tactics and various acts  of  sabotage rendering the running of factory and office virtually impos- sible and an atmosphere of terror, intimidation and  vilifi- cation  prevailed. On October 30, 1971 the workers and  mem- bers of the staff became more and more aggressive and  after threatening  the managerial staff resorted to acts of  riot- ing,  hooliganism  and destroyed considerable  part  of  the Company’s properties. To control the situation police had to be  summoned. The workers became more violent and  prevented the  Directors and Senior Officers from leaving the  factory and threw missiles on them and the police. A good number  of Police  Officers and Constables were injured and the  police then arrested about 183 workers.     The Company terminated the services of the workmen  with immediate effect by its notice dated October 30, 1971 issued under  the Standing Orders applicable to its  employees  and the notice was duly published.     Thereafter,  the  workmen raised an  industrial  dispute which was referred for adjudication to the Industrial Tribu- nal being I.T. No. 325 of 1971. 826     The factory was completely closed down from November  1, 1971 and there was no production till May, 1972. Pursuant to notice  dated  June 7, 1972 by the appellant,  many  workmen

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rejoined the factory.     Before the Tribunal the case of the Union and the  work- ers was that the services of the workers were terminated due to  closure  and although the Tribunal cannot  go  into  the question of legality or illegality of the closure, yet  they would  be  entitled to compensation under s. 25 FFF  of  the Industrial Disputes Act, 1947. The contention of the  appel- lant-company  was that the workers were validity  discharged on October 30, 1971 under Standing Order 21 i.e. before  the alleged closure became operative and that it was not  liable to pay compensation under s. 25 FFF.     The question before the Tribunal was whether the workmen continued  to be in employment till the closure took  effect on November 1, 1971 or whether they ceased to be the employ- ees of the appellant on October 30, 1971 or October 31, 1971 by virtue of the notice of the discharge issued under Stand- ing Order 21.     The  Tribunal  held that the workers were  validly  dis- charged on 30th October, 1971 before their services could be terminated due to closure and, therefore, could not be  said to  have been retrenched due to closure; that  the  workers’ services  stand to have been terminated at least from  10.30 a.m. on October 31, 1971 when the order of discharge  became effective;  that thereafter the workers were not in  service of the company and also were not in the service at the  time of  the  alleged closure and that since the  termination  of services  of the workers is not connected with the  closure, they  would not be entitled to any compensation due to  clo- sure.  The  reference was rejected by the  Tribunal  by  its order  dated  October 30, 1974. The award  remained  unchal- lenged and became final.     Thereafter at the instance of 440 workers another refer- ence  being IT No. 245 of 1975 was made. The  Tribunal  held that  the workmen included in the Schedule to the  reference should  be deemed to have been retrenched on March 20,  1980 i.e.  the  date  of the Award, that they  were  entitled  to retrenchment compensation under s. 25 F of the Act and  they were entitled to recover 75% of their back wages from  Octo- ber 31, 1971 till March 20, 1980. The Tribunal rejected  the contention  of  the  management that the  present  case  was barred  by the principle of res judicata and held  that  the termination  of the services of workers under the notice  of discharge dated October 30, 1971 was invalid. 827     The  management  challenged the latter award in  a  writ petition  before the High Court. The petition was  dismissed by a Single Judge. The Division Bench dismissed the appeal.     In the appeal, to this Court on behalf of the  appellant management  it  was  submitted that  the  latter  Industrial Tribunal was in error in treating the workmen in question as being in the employment of the management until it made  the Award  even  though  the first Tribunal had  held  that  the workmen  had  been validly discharged by  the  notice  dated October  30,  1971 issued under Standing Order  21  and  the enquiry into the very same question between the same parties was barred by the principle of res judicata. Allowing  the  Appeal  and disposing of  the  Special  Leave Petition,     HELD:  1. That the rule of res judicata applies to  pro- ceedings before the Industrial Tribunals is beyond question. However, it is not that a question which is once decided can never  be  re-agitated. There are certain classes  of  cases like  disputes regarding wage structure, service  conditions etc. which arise as circumstances change and new  situations arise  which may not be barred by the rule of  res-judicata.

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[834F; 836D-E]     Burn  & Co., Calcutta v. Their Employees, [1956]  S.C.R. 781; Workmen of the Straw Board Manufacturing Company Limit- ed v. M/s Straw Board Manufacturing Company Limited,  [1974] 3 S.C.R 703; Workmen of Balmer Lawrie and and Co. v.  Balmer Lawrie  and  Co. [1964] 5 S.C.R. 344 and  Associated  Cement Staff  Union  and another v. Associated Cement  Company  and others, [1964] Vol. 1 L.L.J. 12, followed.     2.  The  question  whether the  workmen  concerned  were entitled to retrenchment compensation under s. 25F as on the date of the Award and payment of back wages from October 31, 1971  to  March 20, 1980 depends upon their right to  be  in service  from the date on which they ceased to work  in  the factory  upto the date of the Award. In the first  reference the workmen specifically prayed for payment of  compensation under  s.  25 FFF on the ground that the  factory  had  been closed  with effect from November 1, 1971 as per  notice  of closure thereby accepting the position that they had  ceased to  be the employees of the management on November 1,  1971. That  claim  was resisted by the management on  the  footing that the workmen had been discharged pursuant to the  notice of  discharge dated October 30, 1971. Even though the  first Tribunal had observed that it had considered the question of 828 discharge as an "incidental question in view of the  defence taken by the Company" the case was decided only on the basis of its finding that the workmen had been validly  discharged by the notice dated October 30, 1971. Though the said Tribu- nal  had  observed "that there is nothing on the  record  to show at this stage that the discharge order is not  proper", it  did  not mean that the validity of the  discharge  order could  be  reagitated later on because  the  first  Tribunal further  observed,  "it would then be evident that  all  the workers  of  the Company were discharged by the  Company  on 30th  October, 1971 before the closure could  become  effec- tive". [836F-H; 837A-B]     3. The one and the only ground on which the claim of the workmen  for compensation under s. 25 FFF was  rejected  was that the workmen had ceased to be employees of the appellant by reason of the notice of discharge dated October 30, 1971. The  validity of that notice of discharge was  directly  and substantially in issue in the first reference. [837B-C]     4.  Before  the first Tribunal the  workmen  could  have urged  that the discharge was invalid and,  therefore,  they continued to be in service till November, 1, 1971 and  hence were  entitled to compensation under s. 25 FFF. The case  of the workmen that they were entitled to compensation under s. 25 FFF was negatived by the first Tribunal holding that  the workmen  had  been validly discharged by  the  notice  dated October 30, 1971. The decision of the first Tribunal may  be erroneous  and  could have been set right if its  Award  had been  challenged  but it was allowed to  become  final.  The decision of the first Tribunal was not one rendered  without jurisdiction nor can it be characterised as a nullity on any ground known to law. [837D-F]     5.  The  question  whether a person was or  was  not  an employee  under a management after a particular date is  one which  cannot be re-agitated in a subsequent case if it  has already  been decided finally by an industrial  Tribunal  of competent  jurisdiction  in an earlier case where  the  said question necessarily arose for decision. [837F]     Buran & Co., Calcutta v. Their Employees, [1956]  S.C.R. 781  and  Workmen of the Straw Board  Manufacturing  Company Limited  v. M/s Straw Board Manufacturing  Company  Limited, [1974] 3 S.C.R. 703, followed.

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   6.  The workmen did not claim before the first  Tribunal the  relief  of reinstatement or compensation under  s.  25F even though the factory had been reopened in 1972 before the first Award was passed but only 829 confined  their relief to compensation under s. 25 FFF.  The workmen  could  not have, therefore, been permitted  to  re- agitate  the  said matter before the second  Tribunal  which decided  the second reference and to contend that  they  had continued  to be employees of the management on  the  ground that the notice of discharge and the notice of closure  were both  invalid. The second Tribunal should have rejected  the said  contentions by holding that the validity of notice  of discharge  dated October 30, 1971 was not open  to  question before it. The second Tribunal was in error in  re-examining the  issue  relating to the validity of the notice  of  dis- charge  and in expressing a contrary view. The  Award  dated March 20, 1980 passed by the second Tribunal is,  therefore, liable to be quashed. [837G-H; 838A-C]     [The  Court appreciated and accepted the  submission  of the appellant-management that it would give up its right  to claim the refund of Rs.48,00,000 lying with the Commissioner of  Labour even though the Award is set aside and  the  same may  be  distributed ex-gratia amongst the 440  workmen  in- volved in the second reference equally and issued  necessary directions in that behalf. The Court also directed that  the amount  of  Rs.1,63,000 realised by the Collector  shall  be refunded to the appellant.]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1463  of 1986 etc.     From  the  judgment  and Order dated  26.3.1985  of  the Bombay High Court in Appeal No. 264 of 1985.     F.S. Nariman, A. Sande, S. Sukumaran, S.C. Sharma,  Miss Godbole and D.N. Mishra for the Appellant.     Dr.  Y.S.  Chitale, N.B. Shetye, P.H. Parekh,  Dr.  B.Y. Chandrachud and P.K. Manohar for the Respondent. The Judgment of the Court was delivered by     VENKATARAMIAH, J. This appeal by special leave is  filed against  the judgment of the High Court of Bombay in  Appeal No. 264 of 1985 dated March 26, 1985 affirming the  decision of  the learned Single Judge of that Court in Writ  Petition No. 867 of 1980 dated January 18, 1984. The appellant is a company engaged in the business of manu- 830 facturing barrels and drums at its factory in Bombay. In the year  1971  it  had engaged about  1100  workmen--about  600 permanent  workmen and 500 temporary workmen. It is  alleged that  since 1968 the factory was working intermittently  and that the situation had worsened on account of non-availabil- ity of raw materials and other compelling circumstances.  By 1971 the company could see no other alternative but to close down  its factory and accordingly it issued a  ’closure  no- tice’  dated September 30, 1971 which was duly displayed  on the Notice Board and that it also intimated all its  workmen that  their services would stand terminated due to the  clo- sure  of the factory with effect from November 1, 1971.  The workmen also were informed that they would be paid compensa- tion  under section 25 FFF of the Industrial  Disputes  Act, 1947  (hereinafter referred to as ’the Act’). The  appellant alleges that soon after the display of the ’closure  notice’ dated  September  30, 1971 the workmen indulged in  go  slow

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tactics  and various acts of sabotage rendering the  running of  the factory and office virtually impossible.  The  whole work  was paralysed. It is alleged that during the month  of October there were meetings of workmen and an atmosphere  of terror, intimidation and vilification prevailed. On  October 30,  1971  with  the commencement of the  first  shift  i.e. practically on the eve of the effective date of the  closure on  November 1, 1971 in terms of the ’closure notice a  very grave and tense atmosphere prevailed on the premises of  the factory of the appellant and by the afternoon all the  work- ers and members of the staff became more and more aggressive and after threatening the managerial staff resorted to  acts of  rioting, hooliganism and destroyed considerable part  of the appellant’s properties. The situation further aggravated by the workmen of the second shift joining the said  workmen of the first shift. The workmen of the first shift continued to  remain in the precincts of the factory and  squatted  in the passage leading to the office of the appellant where the directors and senior officers were present and thus  blocked the  passage. The union leaders addressed the workers  using inflammatory  and defamatory language against the  directors and  officers.  At that stage the management  requested  the assistance  of the police. The police force arrived  accord- ingly.  The Assistant Commissioner of Police  S.N.  Minocher Homji  appealed to the workers not to prevent the  directors and  senior officers from leaving the factory. Ignoring  the said appeal, the union leaders "gheraoed" the directors  and senior  officers  and when the police tried  to  assist  the directors and senior officers to leave, the workers  pounced upon  the  police party and tried to attack them.  When  the police  tried to resist the workers became more violent  and threw  missiles like nuts, grinding wheels, soda water  bot- tles, stones, brick bats etc. at the police and the 831 directors  and officers including their cars and the  police van.  One  sharp  missile struck the eye  of  the  Assistant Commissioner of Police and he lost his eye. About 26  Police Officers  and  constables  were injured.  A  grinding  wheel thrown  at the car of the director would have  caused  fatal injury but only the car was badly damaged. Machinery to  the tune  of Rs.6,50,000 was damaged. The police  then  arrested 183 workers while the rest of them fled away.     In view of the grave law and order situation, the compa- ny  decided  to terminate the services of the  workmen  with immediate  effect by its notice dated October 30,  1971  is- sued’ under the Standing Orders applicable to the  employees of the appellant. The ’said notice was duly published on the Notice  Board as well as in the daily newspaper  ’Navshakti’ and ’Free Press Journal’ both dated November 1, 1971.     Thereafter the workmen raised an industrial dispute  and the  Government  of Maharashtra by its  order  of  reference dated November 9, 1971 referred the dispute for adjudication by the Industrial Tribunal of Shri G.K. Patankar. The  terms of reference were:                         "(i)  Whether the nature of  closure               declared  by the company by its  notice  dated               September 30, 1971 is for temporary period and               to  defeat the pending claims of  the  workmen               before the various authorities.                         (ii)  Whether  the said  closure  is               legal and bonafide, if not what further relief               be  given to the workmen in addition to  wages               for the period of enforced unemployment?                         (iii)  In case the closure is  legal               and bonafide whether the workmen are  entitled

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             to compensation in accordance with the  provi-               sions  of section 25 F of the Industrial  Dis-               putes  Act,  1947 or under the  provisions  of               section 25 FFF."  0     The  above  reference was numbered as I.T.  No.  325  of 1971.  It is alleged by the management that the factory  was completely  closed down from November 1, 1971 and there  was no production till May, 1972. During this period there  used to be meetings of the workmen and skirmishes near the facto- ry. In may, 1972 the High Court of Delhi by its order  dated May  19,  1972  in a writ petition filed  by  the  appellant directed M/s Hindustan Steel Ltd. to resume forthwith supply of steel sheets to the appellants. In view of this order the appellant put up a 832 notice  dated June 7, 1972 both on the Notice Board  in  the office  as welt as at the main gate of the factory  advising the  ex-workers who desired to offer themselves for  employ- ment  to intimate the same to the appellant. It also  stated that  preference would be given to such of  the  exemployees who  may abide to work peacefully. This notice was  followed by  two more such notices dated August 10, 1972 and  October 13, 1972. Many workmen rejoined the factory.     Now, we shall revert to the reference made to the Tribu- nal  in I.T. No. 325 of 1971. In that case although  various pleas  were taken by the parties in their pleadings  at  the hearing  it was the case of the union that the  services  of the  workers  were  terminated due to  closure  whereas  the company  contended  that  they were  discharged  before  the alleged  closure  became operative (Page 147  of  the  Paper Book).  On behalf of the workmen it was contended "that  the services of the workers stand terminated due to closure  and although the Tribunal cannot go into the question of legali- ty  or illegality of the closure, yet when the  services  of the  workers  are terminated due to closure  they  would  be entitled to compensation under section 25 FFF of the ID Act" (P. 150 of the Paper Book). The management reiterated before the  Tribunal  that it was not liable  to  pay  compensation under  section  25 FFF of the Act as the  workmen  had  been discharged  on October 30, 1971 under Standing Order 21.  In the  above  situation the Tribunal was  required  to  decide whether  the workmen continued to be in employment till  the closure  took  effect on November, 1, 1971 or  whether  they ceased to be the employees of the management on October  30, 1971  or  October 31, 1971 by virtue of the notice  of  dis- charge issued under Standing Order 21. On the above question the  Tribunal recorded its findings. We shall state them  in its own words. The Tribunal observed: "It would then  follow that the workers were discharged before their services could be terminated due to closure. The workers, therefore, cannot be said to have been retrenched due to closure in the exist- ing  circumstances" (Page 155 of the Paper Book). "The  said ruling  is applicable and the workers’ services,  therefore, stand  to have been terminated at least from 10.30  a.m.  on October 31, 1971 due to the order of discharge" (Page 155 of the  Paper  Book). "The discharge order, therefore,  in  any case  became effective from 10.30 a.m. on October 31,  1971. The workers, therefore (were) not in service of the  company thereafter  and also were not in service at the time of  the alleged  closure"  (Page 159 of the Paper Book).  "The  fact remains  that  the services of the workers  were  terminated because they were validly discharged and hence as  mentioned above,  they  would not be entitled for any  relief  due  to closure even if it is assumed that there was closure

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833 as  alleged"  (underlining  by us) (Page 159  of  the  Paper Book). "The point as to whether the workers would have  been entitled  to compensation under section 25  FFF   .......... The  same  was argued for the union by Shri Kamerkar  and  I agree with the fact that if the services of the workers  had been  terminated due to closure, then they would  have  been entitled  for  compensation under section 25 FFF of  the  ID Act, 1947. It has however already been found that the  serv- ices  of the workers were not terminated due to closure  and hence question of compensation would not arise" (Page 162 of the  Paper  Book). "It would then be evident  that  all  the workers of the company were discharged by the company on the 30th October, 1971 before the closure could become effective (Page  164  of the Paper Book). "Since  the  termination  of services  of the workers is not connected with  the  closure the  workers would not be. entitled to any compensation  due to  closure" (Page 165 of the Paper Book). With these  find- ings  the reference was rejected by the Industrial  Tribunal by its order dated October 30, 1974. The above Award made in I.T. No. 325 of 1971 remained unchallenged and became final. Thereafter  at  the  instance of 440  workers  only  another reference was made by the Government of Maharashtra on  July 10, 1975 to the same Industrial Tribunal Shri G.K.  Patankar under  section  10(1)(d) of the Act which  was  numbered  as reference  (I.T.)  245 of 1975 and this time the  points  of dispute referred were as follows:                         "(1)  All employees whose names  are               mentioned  at Annexure ’A’ be reinstated  with               full  back  Wages and continuity  of  service,               restoring their status, rights and  privileges               as if there was no break in service.                         (2)  These employees should be  paid               one year’s wages as an interim relief till the               final disposal of the case."     In the Schedule to the reference the names of 440  work- men, who were employees prior to their discharge on  October 30,  1971/October 31, 1971 were included. They were  workmen on whom the earlier Award passed in I.T. No. 325 of 1971 was binding. By the time the second reference, reference  (I.T.) 245 of 1975, was disposed of the membership of the  Tribunal had  changed and Shri M.A. Deshpande had been  appointed  in the place of Shri G.K. Patankar. Shri M.A. Deshpande  passed his  Award on March 20, 1980. He held that the  workmen  in- cluded in the Schedule to the reference should be deemed  to have been retrenched on March 20, 1980 i.e. the date of  the Award, that they were entitled to the retrenchment compensa- tion  as laid down in section 25F of the Act and  that  they were entitled to recover 75% of 834 their back wages from October 31, 1971 till March 20,  1980. The  above  Award was passed by the Tribunal  rejecting  the contention that the present case was barred by the principle of  res  judicata and holding that the  termination  of  the services  of  workers under the notice  of  discharge  dated October  31, 1971 was invalid. It is not necessary to  refer to  all  other findings at this stage since the  only  point which  requires to be examined in this case is  whether  the decision on the question of res judicata is correct or not.     Aggrieved  by the latter Award dated March 20, 1980  the management  filed a writ petition before the High  Court  in Writ Petition No. 867 of 1980. The learned Single Judge  who heard the said petition dismissed it on January 18, 1984 and an  appeal filed against his decision in Appeal No.  264  of 1985  was dismissed by the Division Bench of the High  Court

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on March 26, 1980. This appeal by special leave is filed  by the management against the said decision of the High Court.     The  principal question which is urged before us by  the management is that the latter Industrial Tribunal (Shri M.A. Deshpande) was in error in treating the workmen in  question as  being in the employment of the management until it  made the  Award even though the first Tribunal (Shri G.K.  Patan- kar)  had held that the workmen had been validly  discharged by  the notice dated October 30, 1971 issued under  Standing Order 21 and the enquiry into the very same question between the same parties was barred by the principle of res  judica- ta.     That  the  rule of res judicata applies  to  proceedings before the Industrial Tribunals is beyond question. In  Burn &  Co.,  Calcutta v. Their Employees, [1956] S.C.R.  781  at pages 789-90 this Court has observed thus:               "Are  we  to  hold that an award  given  on  a               matter  in  controversy  between  the  parties               after full hearing ceases to have any force if               either  of  them repudiates it  under  section               19(6),  and that the Tribunal has  no  option,               when  the matter is again referred to  it  for               adjudication,  but  to proceed to  try  it  de               novo,  traverse the entire ground once  again,               and  come to a fresh decision. That  would  be               contrary to the well recognised principle that               a  decision once rendered by a  competent  au-               thority  on  a  matter in  issue  between  the               parties  after  a full enquiry should  not  be               permitted  to  be re-agitated. It is  on  this               principle that the rule of res judi-               835               cata enacted in section 11 of the Civil Proce-               dure Code is based. That section is, no doubt,               in  terms inapplicable to the present  matter,               but the principle underlying it, expressed  in               the maxim "interest rei publicae ut sit  finis               litium", is founded on sound public policy and               is  of  universal application.  (vide  Broom’s               Legal  Maxims, Tenth Edition, page 218).  "The               rule of res judicata is dictated" observed Sir               Lawrence Jenkins, C.J. in Sheoparsan Singh  v.               Ramnandan  Prasad Singh, [1916] L.R.  43  I.A.               91.  "by a wisdom which is for all time".  And               there  are  good reasons  why  this  principle               should be applicable to decisions of Industri-               al Tribunals also. Legislation regulating  the               relation  between Capital and Labour  has  two               objects  in  view. It seeks to ensure  to  the               workmen  who  have not the capacity  to  treat               with capital on equal terms, fair returns  for               their  labour. It also seeks to  prevent  dis-               putes between employer and employees, so  that               production might not be adversely affected and               the larger interests of the society might  not               suffer. Now, if we are to hold that an adjudi-               cation  loses its force when it is  repudiated               under section 19(6) and that the whole contro-               versy  is at large, then the result  would  be               that  far from reconciling themselves  to  the               award  and  settling down to work  it,  either               party  will  treat it as a mere stage  in  the               prosecution  of a prolonged struggle, and  far               from  bringing  industrial peace,  the  awards               would  turn  out to be but truces  giving  the

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             parties breathing time before resuming hostile               action with renewed vigour. On the other hand,               if  we are to regard them as intended to  have               long term operation and at the same time  hold               that they are liable to be modified by  change               in the circumstances on which they were based,               both the purposes of the legislature would be’               served.  That is the view taken by the  Tribu-               nals  themselves  in The Army  &  Navy  Stores               Ltd., Bombay v. Their Workmen, [1951] 2 L.L.J.               31  and Ford Motor Co. of India Ltd. v.  Their               Workmen.[1951]  2 L.L.J. 231., and we  are  of               opinion that they lay down the correct princi-               ple,  and that there were no grounds  for  the               Appellate Tribunal for not following them."     Same  view  is expressed in Workmen of the  Straw  Board Manufacturing Company Limited v. M/s Straw Board Manufactur- ing  Company  Limited, [1974] 3 S.C.R. 703. This  Court  has observed this at page 717: 836               "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 applica-               ble, 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  indus-               trial  peace which is the principal object  of               all  labour legislation bearing on  industrial               adjudication. But whether a matter in  dispute               in a subsequent case and earlier been directly               and  substantially in issue between  the  same               parties and the same had been heard and final-               ly  decided by the Tribunal will be of  perti-               nent consideration and will have to be  deter-               mined before holding in a particular case that               the principles of res judicata are attracted".     We  would hasten to add that the above  observations  do not mean that a question which is once decided can never  be re-agitated.  There are certain classes of cases  like  dis- putes  regarding  wage structure,  service  conditions  etc. which arise as circumstances change and new situations arise which  may  not be barred by the rule of res  judicata.  The disputes which arose for consideration in Workmen of  Balmer Lawrie and Co. v. Balmer Lawrie and Co., [1964] 5 S.C.R. 344 and in Associated Cement Staff Union and another v.  Associ- ated  Cement  Company and others, [1964] Vol. 1  L..L.J.  12 belong to this category of cases.     In  the instant case we are concerned with the  question whether the workmen concerned were entitled to  retrenchment compensation under section 25F of the Act as on the date  of the Award and payment Of back wages from October 31, 1971 to March 20, 1980. This question depends upon their right to be in service from the date on which they ceased to work in the factory  upto the date of the Award. In the first  reference I.T.  No.  325 of 1971 the workmen specifically  prayed  for payment  of compensation under section 25FFF of the  Act  on the ground that the factory had been closed with effect from November 1, 1971 as per notice of closure thereby  accepting the  position  that they had at any rate ceased  to  be  the employees  of the management of November 1,1971. That  claim was  resisted  by  the management on the  footing  that  the

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workmen  had been discharged pursuant to the notice of  dis- charge dated October 30, 1971. Even though in the course  of its Award the 1st Tribunal had observed that it had  consid- ered the question of discharge as an "incidental question in view of the defence 837 taken by the company" the case was decided only on the basis of its finding that the workmen had been validly  discharged by  the notice dated October 30, 1971. It is true  that  the said  Tribunal  had observed "that there is nothing  on  the record to show at this stage that the discharge order is not proper."  But it did not mean that the validity of the  dis- charge  order could be re-agitated later on because  in  the very next sentence the 1st Tribunal observed: "It would then be  evident  that all the workers of the company  were  dis- charged  by  the company on 30th October,  1971  before  the closure could become effective." The one and the only ground on  which  the claim of the workmen for  compensation  under section  25FFF of the Act was rejected was that the  workmen had ceased to be employees of the appellant by reason of the notice of discharge dated October 30, 1971. The validity  of that  notice of discharge was directly and substantially  in issue in the first reference. The above observations of  the 1st  Tribunal on which the learned Single Judge has  relied, therefore, do not carry the case of the workmen any further. Before  the 1st Tribunal it was open to the workmen to  urge that  the discharge was invalid and, therefore, the  workmen continued  to  be in the service till November 1,  1971  and hence  were entitled to compensation under section 25FFF  of the Act. Their case that they were entitled to  compensation under  section  25FFF of the Act was negatived  by  the  1st Tribunal  on its firm conclusion that the workmen  had  been validly discharged by the notice dated October 30, 1971.  It may  be that the decision of the 1st Tribunal was  erroneous and  could have been set right if its Award had  been  chal- lenged  before Higher Courts. But it was allowed  to  become final. The decision of the 1st Tribunal was not one rendered without  jurisdiction.  Nor  can it be  characterised  as  a nullity  on any ground known to law. The question whether  a person was or was not an employee under a management after a particular  date  is one which cannot be  re-agitated  in  a subsequent  case in the circumstances which are referred  to above if it has already been decided finally by an Industri- al  Tribunal  of competent jurisdiction in an  earlier  case where the said question necessarily arose for decision. This case falls within the scope of the decision in Burn &  Co.’s case  (supra) and in the case of Straw  Board  Manufacturing Co.  Ltd. (supra). We have extracted above the several  pas- sages  from  the Award of the 1st Tribunal  which  leave  no scope for re-agitating the issue relating to the validity of the  notice of discharge dated October 30, 1971. It is  sig- nificant  that  the  workmen did not claim  before  the  1st Tribunal  the relief of reinstatement or compensation  under section  25F  of the Act even though the  factory  had  been reopened in 1972 before the first Award was passed but  only confined their relief to compensation under section 25FFF of the Act. The workmen could 838 not  have, therefore, been permitted to re-agitate the  said matter  before the Second Tribunal which decided the  second reference  and  to  contend that they had  continued  to  be employees of the management on the ground that the notice of discharge  and the notice of closure were both invalid.  The Second Tribunal should have rejected the said contentions by holding  that  the  validity of notice  of  discharge  dated

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October  30,  1971 was not open to question before  it.  The second  Tribunal  was  in error in  re-examining  the  issue relating  to the validity of the notice of discharge and  in expressing  a contrary view. The Award dated March 20,  1980 passed by the second Tribunal Shri M.A. Deshpande is  there- fore liable to be quashed and it is accordingly quashed.     Before  concluding we should refer to a concession  made by  the management before us. When the writ  petition  filed against  the Award dated March 20, 1980 was  pending  before the  High Court, the workmen proceeded to enforce  it  under section 33-C(i) of the Act before the Assistant Commissioner of   Labour.  He  issued  a  certificate  for  recovery   of Rs.96,98,492.48  against the management. When the  Collector took steps to recover the above amount, the appellant  filed a  writ petition before the High Court in Writ Petition  No. 2081 of 1983 against the order passed under section  33-C(1) of the Act. That petition was dismissed in limine. An appeal filed against that order before the Division Bench in Appeal No. 394 of 1984 was dismissed on June 27, 1984. Against that order  the management filed a special leave petition  before this  Court  in Special leave Petition (Civil) No.  9337  of 1984.  When  that petition came up for hearing,  this  Court issued  notice on the petition and also issued an  order  or stay  of recovery of the amount for which a certificate  had been  issued  on August 27, 1984 subject  to  the  appellant depositing  Rs.48,00,000 (Rupees Forty-eight lakhs)  in  in- stalments on the dates specified in that order. The  manage- ment deposited the entire sum of Rs.48,00,000 though not  on the  dates specified above and the said sum ultimately  came into the possession of the Commissioner of Labour,  Commerce Centre, Tardeo Bombay. Out of the said sum, some amount  has already  been  distributed amongst some of the  workmen  (or their legal representatives, wherever the workman was  dead) at  whose  instance  the second reference was  made  as  per interim order passed by this Court. The learned counsel  for the  appellant-management  has submitted before us  that  it would  give  up its right to claim the refund  of  the  said amount  of Rs.48,00,000 even though the Award is  set  aside and that the said amount of Rs.48,00,000 (less expenses,  if any,)  may be distributed ex-gratia amongst the 440  workmen involved in the second reference 839 equally.  He also prayed that the sum of Rs.1,63,000  recov- ered  separately  by the Collector may be  refunded  to  the appellant.  We very much appreciate the submission  made  on behalf of the management. This brings substantial relief  to the  workmen  concerned since the sum  of  Rs.48,00,000  now offered is equivalent to a little more than three times  the amount which the workmen would have got under section  25FFF of  the Act, if they had succeeded in the 1st Reference.  It is  stated  that under section 25FFF of the Act  they  would have  been  entitled to get in 1971 about  Rs.14,00,000  and even if interest calculated at a reasonable rate till  today on that sum is added, the total amount payable would be less than  Rs.48,00,000. The amount of Rs.48,00,000  now  offered is,  therefore, on the liberal side. We,  therefore,  direct that the sum of Rs.48,00,000 which is with the  Commissioner of  Labour  shall  be distributed equally  amongst  the  440 workmen.  If any of the workmen or their  legal  representa- tives  have  already  received any amount out  of  it,  that amount shall be adjusted against the amount due to them.  If any workman has received the whole of the amount due to  him under  this  order then nothing more need be  paid  to  him. There  appears to be some dispute about the identity of  the workmen. The Commissioner of Labour shall publish the  names

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of  all the 440 workmen in a local newspaper informing  that they  would  be entitled to the amounts  to  be  distributed under  this  order and he shall disburse  the  amount  after fully  satisfying himself about the identify of the  workmen as  ordered  by this Court on March 13, 1986 in  C.M.P.  No. 7068  of 1986. He shall meet the cost of publication in  the newspaper  from the amount available with him and  only  the balance  shall be equally distributed as directed above.  If the  entire amount is not distributed as per this  order  on account  of the non-availability of the  concerned  workmen, the  amount  shall not be refunded to  the  management.  The Commissioner  of Labour shall seek directions of this  Court as to how the balance of the amount should be  appropriated. In  any event the management shall not get back any part  of it.  This  order  is passed in full settlement  of  all  the claims  of all the workers who were employed before  October 30,  1971. Nobody else shall be permitted to raise any  dis- pute of this kind. The amount of Rs.1,63,000 realised by the Collector shall, however, be refunded to the appellant.     The  appeal is accordingly allowed and the  Award  dated March 20, 1980 in reference (I.T.) 245 of 1975, the judgment of  the Single Judge and of the Division Bench of  the  High Court  are  set aside subject to the  above  directions.  No costs. 840     Special Leave Petition (Civil) No. 9337 of 1984 referred to above is also disposed of by this judgment. It is, howev- er,  evident that the recovery proceedings pursuant  to  the certificate  issued by the Assistant Commissioner of  Labour cannot  be  proceeded with since the Award itself  has  been quashed by this judgment. A.P.J.                                                Appeal allowed. 841