JUDGMENT [ENTITY], J.
1. Heard the learned Advocates appearing for the parties.
2. In this application under [SECTION] of the [ACT], the petitioner, a co-operative society, who is the employer of the workmen has assailed the order dated 30th September, 2005 passed by the learned Judge, Seventh Industrial Tribunal, West Bengal, Calcutta in [CASE NUMBER] whereby and whereunder the application praying interim relief in terms of [SECTION] of the [ACT] was allowed granting relief to the extent of payment of 50% of last wages for the first three months and thereafter @ 75% of the last wage being effective from the date of filing application month by month till the disposal of the reference case.
3. This application has been opposed by the workmen through the learned Advocate. The learned senior Advocate, Mr. [ENTITY] appearing for the petitioner submits that as the service of 240 days in the year was not at all completed and/or not fulfilled having regard to the provision of law under the [ACT], namely [SECTION] for the purpose of declaring the workman as in continuous service, no relief could be granted in absence of such working days and hence there was no prima facie case to grant relief in the application under [SECTION] of the said Act as filed. Mr. [ENTITY] further submits that [SECTION] of the [ACT] as applicable to the West Bengal in terms of its amendment in 1980 has stipulated a time limit of passing such interim relief namely, within 60 days from the date of the order referring such industrial dispute and in the instant case that condition since has not been fulfilled, hence, after expiry of the time limit, learned Tribunal had no jurisdiction to grant any relief any he ought to have adjudicated the entire dispute as referred to. The said legal submission is opposed by the learned Advocate appearing for the workmen by contending, inter alia, that 240 days working in a year for declaration that workman is in continuous service for the purpose of availability of the relief in the case of retrenchment has no applicability in the instant case as in terms of the appointment letter read with the evidence led by the employer through its witness, it was satisfied that the leave applications were duly received by the employer and without giving notice the service was terminated. It has been further urged that the said issue namely, applicability of the time limit of 240 days-to obtain status of the continuous service-holder for getting any relief with reference to the application under [SECTION] of the [ACT] in respect of the self-same parties have already been decided in an application under [SECTION] of the [ACT] whereby the maintainability question on that score as was allowed in favour of the workmen by the learned Tribunal below was assailed in the said revisional application registered as [CASE NUMBER]. It is accordingly contended that the res judicata principle is squarely applicable on said issue. About time limit fixed under [SECTION] of the said Act, it is contended that the time limit had no mandatory, consequences to make any order void if it is passed after expiry of the said period.
4. Having regard to the rival contentions of the parties, now the issue is to be resolved. Before adverting to that, the fact of the case is required to be highlighted. It is an admitted fact that both the respondents, the opposite parties herein, the concerned workmen, were appointed in terms of appointment letters providing, inter alia, the condition of appointment including one condition that the service would be terminable on one month's notice of both side. It is also an admitted fact from the record namely, written statement of the respective parties as well as evidence as led, that the leave applications were duly received by the employer. Only dispute raised while workmen have contended that after being medically fit when they reported their joining in the service, they were not allowed to join whereas it is the case of the employer, the concerned co-operative society that workmen did not resume the duty resulting abondonment of the service. On that score ultimately a reference under [SECTION] of the [ACT] was referred to by the State Government for adjudication to this effect :
(1) Whether the termination of services of Sri [ENTITY] & Sri [ENTITY] by way of refusal of employment with effect from 17.8.92 and 18.8.92 respectively by the management of M/s. Tamralipta Co-operative Spinning Mills Ltd. is justified ?
(2) What relief, if any, are they entitled to ?
5. The written statements were filed by the parties. In the written statement the employer has admitted the terms of appointment as well as the condition of service of one month's notice before termination of service. The industrial dispute was referred to by the order dated 1st April, 2002 and the present petitioner filed an application under [SECTION] of the [ACT] praying interim relief which was considered and decided in favour of the workmen by the learned Tribunal below by the decision dated 28th March, 2003 by holding on the basis of respective evidence on the issue to this effect that workmen were not allowed to join the duty after expiry of leave period as sought for and completion of 240 days' work as stipulated in terms of [SECTION] of the [ACT] had no applicability. Evidence in details were discussed wherefrom the Tribunal came to a finding that the employer witness admitted that leave application were duly received by the exployer and unauthorised absence was nothing but a misconduct. Having regard to such finding ultimately the Tribunal allowed the application under [SECTION] of the said Act which, however, was assailed in an application under [SECTION] of the [ACT] by the employer, the said Co-operative Mills in [CASE NUMBER] whereby and whereunder [ENTITY], J. in view of the submission made by the employer that condition precedent of fulfilment of 240 days in a year having not been duly considered by reasoned order no relief could be made, quashed and set aside the impugned order directing the learned Tribunal to frame a preliminary issue on that point touching the maintainability question and thereafter to proceed with the rest of the matter. The relevant portion of the order of [ENTITY], J., reads as follows:
The impugned order, for the reasons aforesaid, is set aside. The learned Tribunal is directed to frame a preliminary issue as to whether the workmen concerned being the opposite party Nos. 1 and 2 herein can be granted any relief and also to try the issue as to the maintainability of the reference. In the event, the learned Tribunal's answer is in the affirmative then the learned Tribunal shall proceed with the rest of the matter. It is, however, made clear that the learned Tribunal shall decide all questions including the question of maintainability independently without being influenced by any of the observations/which may have been made by me in this order. In the event, the learned Tribunal answers the question of maintainability in the affirmative in that event, it will be open to the learned Tribunal to reconsider that application for interim relief on merit.
6. While referring the matter back for decision by the Tribunal, [ENTITY], J., held that adjudication on the issue as to whether the workmen performed duties of 240 days in a year, for having a declaration of continuous service under [SECTION] of the [ACT], was a relevant consideration to grant any interim relief under [SECTION] of the said Act, and as that was not discussed by the Tribunal, the matter should be gone into de novo.
7. In pursuance thereof, the Tribunal ultimately held that the reference was maintainable and non-completion of work for 240 days in a year could not be an embargo to grant any relief and decided the point against the employer concerned as raised and as directed to be considered by [ENTITY], J., as already discussed. This order was passed on 5.1.2005 and for grant of interim relief, matter was fixed on 3.2.2005. The employer that is the present petitioner again moved another revisional application under [SECTION] of the [ACT] challenging the order dated 5.1.2005 passed by the learned Tribunal below holding that the reference was maintainable and completion of work for 240 days issue was not at all attracted. This application was registered as [CASE NUMBER]. By the judgment and order dated 21.7.2005 upon hearing the parties, [ENTITY], J., (as His Lordship then was) decided the issue against the employer by holding that the order of the Tribunal was justified and accordingly dismissed the application under [SECTION] of the [ACT] by discussing the legal points therein. However, the Court further held that the granting of relief also would be considered by the Tribunal without being influenced by the observations made by the Court. The finding of Justice [ENTITY] reads to this effect:
After hearing the rival contentions raised by the learned Advocates for the parties and going through the materials on record, I find that the learned Judge, 7th Industrial Tribunal has analysed the matter relating to maintainability of reference in proper perspective and arrived at a justifiable finding that the concept of service of 240 days does not arise in the instant case nor the company gave any opportunity of hearing to the concerned workmen prior to termination of their services. The learned Judge of the Tribunal has rightly negatived the plea of unauthorised absence of the workmen as raised on behalf of the present petitioner/ company. He has referred to the relevant documents marked as Exhibits wherefrom it transpired that both the workmen sent their respective leave applications dated 23.8.1992 and 24.8.1992 requesting the management to grant them leave for 15 days due to illness and there is no evidence on the part of the company to indicate that they did not receive any such leave application sent by the concerned workmen.
It has been pertinently pointed out by the learned Judge, 7th Industrial Tribunal in the order impugned that on behalf of the company P.W.1 in his evidence before the learned Industrial Tribunal admitted that when the company received the leave applications, the concerned workmen were on the roll of the company. There is no credible material on record to indicate that the workmen concerned voluntarily abandoned their services. The petitioner/company raised the plea of unauthorised absence of the said workmen but such plea is not substantiated by the convincing materials on record. So far as the alleged unauthorised absence is concerned, no action was taken by the company and there is nothing on record to indicate that the petitioner/company ever issued any letter to the concerned workmen asking them to report for duty during the period of allegedly unauthorised absence.
For the foregoing reasons, I am of the view that the learned Judge, 7th Industrial Tribunal, West Bengal, has rightly held that the reference is maintainable. There is no merit in the instant application under [SECTION] of the [ACT] which is, accordingly, dismissed.
Interim order, if any, stands vacated.
The learned Judge, 7th Industrial Tribunal, West Bengal, will proceed . with the hearing on the point of granting of relief to the workmen. It is made clear that I have not entered into the merits of the dispute relating to granting of relief to the workmen. The learned Industrial Tribunal will consider the matter relating to granting of relief to the workmen without being influenced by any observation made by this Court.
8. Regarding grant of relief, the Tribunal accordingly decided the issue by the order dated 30.9.2005 which is impugned herein. The Tribunal has been satisfied about the prima facie case against dismissal by holding that under the contractual terms of appointment providing service of notice was not duly followed and also by considering the deposition of company's witness to this effect that the concerned workmen committed misconduct for unauthorised absence. The Tribunal discussed the issue that leave applications were duly received by the company and there was no departmental proceeding initiated and as such held that there was a prima facie case. With such positive finding, grant of relief was considered by rejecting the contention of the company that condition of 240 days work was not satisfied, by referring the judgment in [CASE NUMBER], wherein it was held that the reference was maintainable and there was no embargo due to non-performance of work for 240 days. This order is now under challenge.
9. Learned Advocate for the petitioner reagitated the matter of continuous service issue in terms of [SECTION] of the [ACT], and on that issue has submitted that the judgment and order dated 21.7.2005 passed by [ENTITY], J., was a judgment per incuriam as the view of the fact that judgment of Apex Court was not properly considered to reject the submission that fulfilment of performance of duties for 240 days in a year was the condition precedent of maintainability of a reference. Accordingly, it has been submitted that the impugned order now could be considered by this Bench on reflection of Apex Courts view even sitting in the concurrent jurisdiction under [SECTION] of the [ACT] and thereby to hold that the judgment delivered by [ENTITY]. J, was a wrong judgment. I am afraid to accept such a contention. It is a settled principle of law that once a point is decided and adjudicated upon, even if expose decision, the same is binding on the parties applying the principle of res judicata. Principle of res judicata has flown and derived from the public policy so that unnecessary litigation is not advanced by harping the same point on different forum. Having regard to such public policy the legislature at their wisdom has introduced the principle of res judicata in the statute. It appears that [ENTITY], J, decided the matter. Such decision may be right or wrong, but it has satisfied the test of res judicata principle. In that view of the matter, the petitioner is debarred to raise the same issue again herein. Had there been any grievance of the petitioner with reference to the finding, judgment and observation of [ENTITY], J., the petitioner could have laid the matter to the higher forum, that is, Apex Court by filing a special leave petition assailing the judgment passed by [ENTITY], J., in [CASE NUMBER]. Once it has not been done, it has a binding effect upon the parties concerned and save and except the Court of higher forum no other Court, even a Court sitting in the concurrent jurisdiction can touch this judgment. For this legal proposition, it does not require any authority, as it is a settled principle of law. In that view of the matter, the submission of Mr. [ENTITY] referring to a judgment on per incuriam issue in the case of [PRECEDENT]., , a judgment of Constitution Bench, has no applicability in the instant case. Furthermore, on perusal of the said judgment of [PRECEDENT] (supra), it appears that the Court only decided the principle of law as to what would be the judgment per incuriam, what would be the judgment stare decisis is as well as the binding effect of such judgments upon the Court below. Considering that the principle of res judicata, point as raised on the non-fulfilment of the condition of continuous work in terms of [SECTION] of the [ACT], cannot be reagitated further in view of the embargo applying the principle of res judicata.
10. So far as the other point as raised, namely, that the application under [SECTION] of the Act since was filed long after the expiry of 60 days from the date of reference, the order is invalid and ineffective, the Court is now to consider the same.
11. [SECTION] of the [ACT] Amendment of the [ACT], reads to this effect:
(2) Where an industrial dispute has been referred to a Labour Court or Tribunal under [SECTION], it shall
(a) after the filing of statements and taking of evidence, give day-to-day hearing and pronounce its award, other determination or decision in the manner specified in [SECTION], and
(b) after hearing the parties to the dispute, determine, within a period of sixty days from the date of the order referring such industrial dispute or within such shorter period as may be specified in such order, the quantum of interim relief admissible, if any:
Provided that the quantum of interim relief shall, in the case of discharge, dismissal or retrenchment of a workman from service or termination of service of a workman, be equivalent to the subsistence allowance admissible under the [ACT].
12. On a bare reading of the said provision, it appears that [SECTION] was inserted in the statute for the welfare of the workman concerned so that during the pendency of the adjudication of any dispute as referred to the workman may get subsistence allowance. This provision of [SECTION] is on principle in the identical footing of [SECTION] of the [ACT], as both the said provisions having been enacted by the legislature to provide relief to the poor workmen concerned who are being compelled to fight their case in the respective Courts, namely, Labour Court, Industrial Tribunal or High Court, as the case may be. A piece of social welfare legislation be construed and considered in the angle as would provide benefit to such workmen. If the submission of the learned Advocate for the petitioner is accepted that after expiry of 60 days, the Tribunal has no jurisdiction even to pass any order with reference to the application under [SECTION] of the Act praying interim relief during pendency of adjudication of the dispute, a serious situation would arise, which practically would frustrate the statutory provision itself denying benefit on that angle. Delay may be caused for many reasons, namely, there may not be Presiding Officer to preside the Tribunal itself. There may be that a number of cases are pending which could not be proceeded within the very short time as identified by the statute, by disposal of the application under [SECTION] of the Act filed by the workmen or there may be cases where the workmen could not approach the Tribunal in appropriate time either may be for the fault or negligence of the Advocate engaged by them or on the ground of economic or financial incapability to approach the Court by filing such application. Hence, it appears there are several reasons which may cause the delay to entertain the application filed before the Tribunal praying interim relief and to dispose of the same. In the instant case, it is true that the application for interim relief under [SECTION] of the Act was filed long after 60 days as prescribed, and it was decided and adjudicated upon thereafter, but for that reason it will not invalidate the judgment and finding in favour of the workmen concerned. Time limit to adjudicate the issue within 60 days from the date of reference under [SECTION] of the Act is within the domain of procedural law which cannot subserve the law and substantive justice. Reliance may be placed to the judgment in the case of [PRECEDENT] , wherein in paragraph 8, the Apex Court held: "The procedure is hand-made for justice and unless the procedure touches upon jurisdictional issue, it should be moulded to subserve substantial justice," in the case of [PRECEDENT], , wherein the Court held:
Technicality alone ought not to hold the field. Justice oriented approach is the call for the day. Even in the judgment in the case of [PRECEDENT]., , the Apex Court held that procedural law cannot be allowed to betray the substantial law by subordinating it to unnecessary complexity and technicalities. Having regard to the aforesaid legal position, this Court is of the view that the period as prescribed "within a period of 60 days from the date of the order referring such industrial dispute", is a provision within the procedural domain of the law and that too for the benefit of the workmen concerned so that the Tribunal is compelled to dispose of the matter as early as possible. Having regard to such, accordingly in [SECTION] of the Act, a further provision has been made that even within such short period, the issue of interim relief should be decided, if possible. Hence, it appears that the time limit for deciding the interim relief issue has been fixed to provide benefit to the workman so that the workman does not suffer during pendency of the dispute to maintain the livelihood, but such provision surely cannot be utilised to nullify the relief in favour of the workman on the ground that application was filed after expiry of 60 days as it has no mandatory effect to that extent. Furthermore, in the provision there is no condition expressly stipulated that after expiry of 60 days period, the Tribunal would have no power or jurisdiction to decide that question and furthermore there is no express provision that no application could be entertained even after expiry of 60 days. Since there is no such express exclusion in the statute itself about entertainability of any application as filed beyond the period of 60 days in terms of the said provision and adjudication thereof, this Court is not finding any illegality to declare on interim award, and for that interim order cannot be said as void. Learned Advocate Mr. [ENTITY] has referred to the Full Bench judgment of this Court in the case of B.G Sampat (Babulal Gobardhandas Sampat) v. State of West Bengal and Ors. v. CFSC Ltd. and [PRECEDENT]., [PRECEDENT], to submit that [SECTION] of the Act is a mandatory provision and 60 days time limit as prescribed is a mandatory prescription and beyond that Court had no jurisdiction. Paragraph 11 has been referred to substantiate this argument. Paragraph 11 reads to this effect :
11. [SECTION] of the [ACT] as amended by the State of West Bengal is almost identical with [SECTION] of the principal Act. Neither in the principal Act or the State Act any period has been fixed during which an award is to be submitted. However, in respect of [SECTION] of the Act, the statute mandates that an order thereunder be passed within a period of sixty days from the date of reference and under [SECTION] or within such shorter period as may be specified therein. Such an order, however, on the face of the said provision has to be passed upon hearing the parties. The Tribunal is also required to determine the quantum of interim relief admissible. It would, therefore, not be correct to contend that the word 'admissible' is to be read in the context of the provisions of [ACT]. The word so read, would make the provisions absurd.
13. This Court is not finding any material as submitted to this effect in the said paragraph, but in the said paragraph it is only stated that it mandates disposal of the interlocutory application by the Court. There is no such finding and observation in the said judgment that even after expiry of 60 days, application is not maintainable and no adjudication could be made.
14. Having regard to such, the point as thrashed by Mr. [ENTITY] has no merit. Accordingly, this issue is answered against the petitioner. The petitioner has not thrashed about any perversity of finding, save and except those points. On perusal of the impugned order, it appears that the Tribunal discussed the issue and relying on the basis of contractual obligation of the employer concerned in terms of the appointment letter and the evidence as laid by the company's witness that unauthorised absence was within the domain of misconduct and that the company duly received the leave applications, this Court is of the view that the finding as reached by the Tribunal below was justified and there is no perversity in such finding. It is a sine qua non to quash any order in an application under [SECTION] of the [ACT], the perversity of the impugned order. On such test, this Court is not finding any merit.
15. Hence, this application stands dismissed with a cost of Rs. 5,000/- to be paid to the workmen within a week from this date, having regard to the fact that the employer on identical issue so far as interim relief is concerned, had approached this Court thrice, once before [ENTITY], J., in an application under [SECTION] of the [ACT] challenging the initial order of interim relief granted by the Tribunal, thereafter before [ENTITY], J., in another application under [SECTION] of the [ACT] cropped up from the self-same point wherein the Tribunal held that the application was maintainable and lastly when the actual relief has been granted adjudicating the application for interim relief. This Court considered to award higher amount of cost, as in the view of this Court, the company by approaching this Court in such a manner practically is intending to frustrate the social welfare legislation, namely, [SECTION] of the Act in terms of the State Amendment which has provided grant of substantial relief for maintaining livelihood of the workmen during pendency of the dispute.
16. Urgent xerox certified copy of the order, if applied for, be supplied expeditiously.