WP(C) 6308/2010 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER (CAV) 1. The sole question which falls for consideration in this writ petition is whether the Presiding Officer, Labour Court, Guwahati is correct in holding that Reference Case No. 7 of 2009 is hit by the principles of res judicata? 2. To appreciate the controversy, I will first deal with the facts of the ca se as pleaded by the petitioners. There are 18 petitioners in this writ petition . They were initially appointed as regular employees at the Bongaigaon Thermal P ower Station (BTPS), Dhaligaon on different dates between 1981 and 1986. Later, their appointment letters were recalled and were then shown to be contract labou rs; they were issued ID cards instead of appointment letters but by accommodatin g them in official residential quarters. They were stated to have been treated a s regular employees for all practical purposes. However, in the year 2002, their services were abruptly terminated purportedly on the ground that the BTPS had s topped production and that the contractual period of the contractor supplying la bours had also stood expired. Aggrieved by this, the petitioners filed WP(C) No. 4855 of 2006 before this Court, which by the order dated 3-3-2009 disposed of t he writ petition by directing them to seek alternative remedy under the Industri al Disputes Act, 1947 ( the Act for short). 3. In the meantime, similarly situated workmen and their Union from Chandr apur Thermal Power Station (under the same respondents) had also approached the Government of Assam for referring their termination dispute raised by them under the Act, which the Government of Assam accordingly did. The Tribunal by the awa rd dated 31-3-2006 in Ref. Case No. 2 of 2003 had directed the Management to rei nstate them to service. This was challenged by the Management before this Court in WP(C) No. 4573 0f 2006, but the award was upheld by this Court vide its judgm ent dated 6-3-2007. It may be noted that two other labour unions, namely, Kokraj har Zilla Thika Shramik Union and Shramik Parishad Trade Union (according to the petitioners, they are not members of these Unions) had also initiated two proce edings before the Labour Court in Reference Case No. 8 of 2002 and Reference Cas e No. 6 of 2003. It may be noted that in Reference Case No. 8 of 2002, some 237 contract labourers constituted the second party while 364 contract labourers con stituted the second party in Reference Case No. 6 of 2003. The Labour Court by t he common award dated 27-1-2006 held that the so-called workmen in both the Refe rence Cases are contract labourers under labour contractors, and the non-renewal of the contract to engage them beyond the specified period of contract did not amount to termination of their services nor did such termination constitute mala fide actions and were, therefore, not entitled to any relief. 4. Aggrieved by this, the two Unions approached this Court in WP(C) No. 51 54 of 2006, which was dismissed by this Court on 10-1-2007 by holding that there was no sufficient ground for its interference. According to the petitioners, in asmuch as they are not parties to this common award dated 27-1-2006, they filed WP(C) No. 4855 of 2006 before this Court, which the order dated 3-3-2009 dispose d of the writ petition by directing them, like other similarly situated persons, to avail of alternative remedy provided for under the Act. When the petitioners had already taken steps for initiating the reference proceeding i.e. Reference Case No. 7 of 2009 before the Labour Court, the respondent No. 3 filed WP(C) No. 4620 of 2009 before this Court challenging the legality of the proceeding on th e ground of res judicata by contending that the same subject-matter, having been finally adjudicated upon between the same parties in Reference Case No. 8 of 20 02 and Reference Case No. 6 of 2003, Reference Case No. 7 of 2009 is barred by t he principles of res judicata, is liable to be closed. This Court, after hearing the parties, disposed of the writ petition on 19-5-2010 by remitting the case t o the Labour Court to verify the identities of the private respondents (the peti tioners herein) of the writ petition and the subject-matter of the Reference Cas e No. 7 of 2009 as the well as the identities of the parties and the subject-mat ter of Reference Case No. 8 of 2002 and that of Reference Case No. 6 of 2003 and thereafter pass necessary order on the basis of the result of such verification s. After hearing both the parties, the Labour Court passed the impugned order da ted 5-9-2010 holding that Reference Case No. 7 of 2009 was not maintainable bein g barred by the principle of res judicata and that no fresh award could be passe d on the terms set by the Government of Assam through the said reference notifi cation No. GLR. 109/2009/8-A, dated 26-5-2009. The Labour Court accordingly drop ped the reference case without answering the issues/terms referred to by the Gov ernment through that notification by holding that the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 on the one hand and the parties i n Reference Case No. 7 of 2009 are one and the same parties. 5. Assailing the impugned award, Mr. B.K. Bhattacharjee, the learned couns el for the petitioners, submits that the approach of the Labour Court in holding that the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 20 03 on the one hand and Reference Case No. 7 of 2009 are one and the same is fall acious: the petitioners are never members of the two Unions nor are they ever af filiated to such Unions. He further contends that it is not clear as to how the names of the petitioners were mentioned by the Labour Court in those reference c ases: the petitioners were never aware of the filing of those cases by the two U nions nor did they ever give their consent for representing them. Drawing my att ention to the issues framed in the said Reference case, the learned counsel main tains that the case of the petitioners throughout has been that they were not co ntract labourers but workmen under the principal employer and not under any labo ur contractor: this can be demonstrated by the finding of the same Labour Court in the award dated 27-1-2006 in para 7 thereof that the concerned workers are al l workmen coming within the definition in Section 2(s) of the Act. As the findin gs of the Labour Court are perverse, submits the learned counsel, the impugned a ward is liable to be set aside. It is also contended by him that when there is n o similarity between the parties in the three Reference cases, the question of a pplying the principles of res judicata does not arise so as to bar the Tribunal from hearing Reference Case No. 7 of 2009. He, therefore, strenuously urges this Court to dismiss the writ petition. 6. The impugned order is, however, supported by Mr. BD Das, the learne d Standing Counsel for the respondent-Board, who contends that when the parties in both the set of Reference cases are one and same and the disputes raised ther ein are directly and substantially in issue in both the set of Reference cases, the Labour Court is correct in holding that Reference Case No. 7 of 2009 is barr ed by the principles of res judicata. Claiming that the writ petition is vexatio us, frivolous and an abuse of process of Court, the learned Standing Counsel for cefully submits that the writ petition is liable to be dismissed with costs. 7. After going through the materials on record and on hearing the learned c ounsel appearing for the parties, it becomes obvious that the first point for co nsideration is whether the petitioners herein, who are parties in Reference Case No. 9 of 2009, were also parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003. It is by now well-established that although the entire Civil Procedure Code is not applicable to industrial adjudication, the principle of r es judicata laid down under Section 11 CPC are applicable including the principl es of constructive res judicata. Courts are prohibited from trying the issue whi ch was directly and substantially in issue in the earlier proceedings between th e same parties, provided that the court trying the subsequent proceedings is sat isfied that the earlier court was competent to dispose of the earlier proceeding s and that the matter had been heard and finally decided by such court. In my op inion, the correct law, with due respect, is laid down by the Division Bench of the Andhra Pradesh High Court in Jujjuvarapu Kotamma v. Pappala Simhachalam and ors., AIR 1969 AP 76. Paragraphs 5, 6 and 7 of the judgment, which are quoted be low: 5. As we have stated at the very outset, the only question of res judicata we ar e concerned is not so much with the specific provisions of this doctrine as with the specific provisions of Sestion 11 CPC which governs the case. Learned Couns el Mr. K. Ramchandrarao, has rightly argued that the general principles of res j udicata based, as they are on the avowed policy of law that no one should be vex ed twice over in respect of the same matter and that there should be finality to the decisions of courts and consequent end to litigation, are wider than the pr ovisions in that behalf contained in S. 11 C.P.C. and are applicable to cases wh ich do not come within the four corners of the said section. It is well settled that where a case does fall within the terms of Section 11 C.P.C., the condition s laid down therein must be strictly complied with. If the conditions prescribed therein under which the decision is a suit can be res judicata are not satisfie d, it is not permissible of res judicata. This argument gains sufficient strengt h also by reason of the compelling authority of the Supreme Court in Janakirama Iyer v. Nilakata Iyer, AIR 1962 SC 633. There Ganjedragadkar, J. (as he then was ) speaking for the Court observed thus: Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only gr ound on which res judicata can be urged against such a suit can be the provision s of Section 11 and no other. In our opinion, therefore, there is no substance i n the ground that the present suit is barred by res judicata. & Thus the question raised has to be decided strictly on the provisions of Section 11, C.P.C. and no other. The said section so far as material for our purpose, r ead thus:- 11. No Court shall try suit or issue in which the matter directly and substanti ally in issue has been directly and substantially in issue in a former suit betw een parties under whom they or any of them claim litigating under the same title , in a Court competent to try such subsequent suit or the suit in which such iss ue has been subsequently raised and had been heard and finally decided by such C ourt. Explanation I & & & & & & &.. Explanation II & & & & & & & & Explanation III & & & & & & & & Explanation IV & & & & & & & & Explanation V & & & & & & & & Explanation VI. Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all per sons interested in such right shall, for the purpose of this section, be deemed to claim under the person so litigating. The contention is that the present case governed though as it is by Section 11 d oes not satisfy the conditions of Section 11 as the plaintiff in the present sui t was neither a party to the former suit nor can she be held to be a person clai ming under any of the parties to the suit. The section refers to the same parti es or parties under whom they or any of them claim. The expression ’same part ies’ is self-explanatory. It means that some persons in the former suit who were parties to that suit. For the purpose of Section 11 C.P.C., it may be borne in mind that a party is a person whose name on the record as the time of the decisi on. In case his name is struck off at any stage of the suit or he is discharged from the suit or his name was introduced by fraud or without knowledge or he was a minor on record unrepresented by a guardian, he cannot be said to be a party to the litigation. Similar is the case with the person who applied in vain to be brought on record. There may be other cases besides. It is difficult to give an exhaustive list of the same. It is sufficient to bear in mind that the person m ust be in fact a party to the former litigation at the time of decision of the c ase. Judged thus, it cannot be postulated that the plaintiff was a party to the forme r suit. Indeed she was in no way a party to the suit. She was not sought to be b rought on record even though defendant 5 set up title for the period before he h imself acquired right by virtue of the sale deed executed by her. After she had sold her right she may not concern herself with any dispute in relation to that land until it becomes necessary for her to do so which could happen only in the event of success of the plaintiff in that case when she may be called upon by th e 5th defendant to discharge her obligation under the sale deed. Nor was it incu mbent upon her to make herself a party to the said suit. If the plaintiff wanted to bind her they could make her party as soon as they came to know of her in th e same manner as the plaintiff in this suit, notwithstanding their transfer of r ight in favour of defendant 4 who is in possession, has been made parties to thi s litigation. As held in Narhar v. Narain, AIR 1920 Nag 184 at p. 186, the party merely interested in litigation cannot be a party to the suit. Such a person is neither bound to make himself a party nor can he be bound by the result of the litigation. It must be noted that the provision refers to the same parties and d oes not introduce any fiction in that behalf. It follows that the plaintiff was not eo nominee a party cannot come within the description of party to the former suit. So the dispute between defendants 1 to 3 and plaintiff cannot be said to be a dispute between the same parties within the meaning of Section 11 C.P.C. 7. Then the next question is whether she is a person claiming under a party to t he former suit. The expression used in Section 11 is thus between parties under whom they or any of them claim. The underlying policy seems to be that a decisio n obtained in a properly constituted proceeding will bind not only the parties b ut all persons on whom right or interest may devolve. A person is said to claim under another when he derives his title through that other by assignment or othe rwise. The right claimed by him must be attributable to the party in the former suit and further this right must have been acquired subsequent to the commenceme nt of the said suit. As a privy or representative in interest he would then be b ound by the decision reached against his predecessor in interest. It is unnecess ary here to detail the various aspect of this question. Suffice it to say that t he plaintiff is not claiming any right from him which she may set up in the case . On the other hand it was she who had conferred on him right in the property by executing it a sale deed. If at all it is defendant 5 who can be said to possib ly claim under the plaintiff but not vice versa. Section 11 does not contemplate a case of a person who is a predecessor-in-interest of a party to the former su it. The expression under whom is inconsistent with any such theory. If she set up any claim in this case it is in her own right and not at any rate under defe ndant 5 who was a party to the former suit. (Underlined for emphasis) 8. Who then are the parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003? On perusal of the cause title of Reference Case No. 8 of 200 2, the names of the petitioners No.1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, 1 6 and 18 were mentioned as members of the Kokrajhar Zilla Thikia Shramik Union, which was the second party therein whereas the names of the petitioners No. 6, 1 1 and 17 were mentioned members of the Kokrajhar Zilla Thika Sramik Union, which also was the second party in Reference Case No. 6 of 2003. The case of the peti tioners is that they are never aware of the two Reference cases nor are they mem bers of the said Unions and the said two Unions, therefore, did not and could ne ver represent them in such proceedings. In fact, they had filed W.P.(C) No. 4855 of 2006 before this Court challenging the termination of their services by the respondent-Board. As already noticed, the writ petition was disposed of by this court on 3-3-2009 by granting them the liberty to avail of the alternative remed y envisaged under the Act. It is interesting to note that at paragraphs 14, 15 a nd 16 of the said writ petition, the petitioners had specifically pleaded that t hey did not have any knowledge about the two Reference proceedings and that they were not members of Kokrajhar Zilla Thika Shramik Union, which was the 2nd Part y in that case. However, such plea was not specifically denied by the respondent -Board in their affidavit-in-opposition.? See paragraph 18 of their affidavit. T he plea taken by the petitioners in paragraph 15 of their writ petition that th e so-called Kokrajhar Zilla Thika Shramik Union was not a registered trade uni on as required under the law and, therefore, could not represent them in the Ref erence cases, is also not specifically controverted or denied by the respondent- Board in their affidavit.? See paragraph 15 of their affidavit. 9. The Labour Court recorded the finding that the workmen of the two refere nce cases did not challenge the order dated 10-1-2007 and that the common award by it on 27-1-2006 had remained undisturbed and had, therefore, attained finalit y. On the question as to whether both the eighteen workmen and the Management of Bongaigaon Thermal Power Station (ASEB) ADGCL were parties in Reference Case No . 8 of 2002 and Reference Case No. 6 of 2003, the Labour Court did not find any difficulty in holding that the Management of Bongaigaon Thermal Power Station (A SEB) APGCL, Salakhati was the first party in both Reference Case No. 8 of 2002 a nd Reference Case No. 6 of 2003. It may be noted that in Reference Case No. 8 of 2002, some 237 contract labourers constituted the second party while 364 contra ct labourers constituted the second party in Reference Case No. 6 of 2003. The L abour Court, after perusing the list of contract labourers whose names were foun d in Reference Case No. 8 of 2002, found that except for the names of the petiti oners No. 6, 11 and 17 whose names are found in Reference Case No. 6 of 2003, th e names of the remaining fifteen petitioners were there in Reference Case No. 8 of 2002. The Labour Court further found that all the 18 workmen of Reference Cas e No. 7 of 2009 were also parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 and that the disputes involved between them therein had been adjudicated by it vide the common Award dated 27-1-2006. The Labour Court also f ound that the Management of Bongaigaon Thermal Power Station owned by the Assam State Electricity Board (ASEB) has now been changed to Assam Power Generation Co mpany Ltd. It, therefore, held that the parties in Reference Case No. 7 of 2009 of the one hand and the parties in Reference Case No. 8 of 2002 and Reference Ca se No. 6 of 2003 on the other are one and the same parties. 10. In my opinion, the approach of the Labour Court is fallacious by proceed ing on the presumption that just because the petitioners were mentioned as membe rs of the Kokrajhar Zilla Shramik Union and Sramik Parishad Trade Union, who wer e the second parties in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003, they were already represented in those two cases and were, therefore, bar red by res judicata from prosecuting Reference Case No. 7 of 2009. In the instan t case, the respondent-Board is unable to prove that the writ petitioners are me mbers of the Kokrajhar Zilla Thika Sramik Union and Sramik Parishad Trade Union or that they had the knowledge that they were represented by these two unions in Reference Case No. 8 of 2002 and Reference Case No. 6 of 2003 or that the two u nions are registered societies. The principle of res judicata is a mixed questio n of fact and law. But it has to be specifically pleaded, and party relying on t he principle of res judicata should place before the court all material particul ars which would be sufficient to give a finding whether the particular case is b arred by the principle of res judicata. In this view of the matter, it is incomp rehensible as to on what evidence the Labour Court proceeded to hold that Refere nce Case No. 7 of 2009 is hit by the principles of res judicata. In my judgment, the findings of the Labour Court are perverse and cannot be sustained in law. O nce it is found that the parties in both the Reference Case No. 8 of 2002 and Re ference Case No. 6 of 2003 on the one hand and the parties in Reference Case No. 7 of 2009 are not the same parties or claiming under the same title, it is not necessary to burden this judgment with discussion on the further issue of whethe r the issues in the two Reference cases are directly and substantially in issues in Reference Case No. 7 of 2009, though I am tempted to say that they do have s triking similarities. It is thus obvious that the Labour Court has improperly ex ercised its jurisdiction in dropping Reference Case No. 7 of 2009, and this call for the interference of this Court. 11. For what has been stated in the foregoing, this writ petition is allowe