Case: Maharashtra General Kamgar Union Vs. Universal Dyeing &amp; Printing Works &amp; Another

of Section 25-H has been sought for by way of making grounds in the Writ Petition and in appeal, it has not been granted by the Honble Single Judge or Division Bench of the High Court. It cannot be said that the said grounds were not considered by the High Court, as no finding has been given by the Honble High Court. By implication it has to be presumed and treated that whatever has been stated in the Appeal grounds have been considered on merits and when the relief is not granted the grounds have been turned down.Consequently the logical position boils down to this that once the remedy claimed under section 25-H of I.D.Act has been turned down by the Honble Single Judge and Division Bench of the High Court, the question of filing the complaint under the provisions of MRTU & PULP Act, 1971 for similar kind of relief does not arise. If such complaints are entertained by the courts of law, then there will be no end to the litigation and it will tantamount to prevail upon the relief already not granted by the Honble High Court.Therefore, even though the complainant is found to have succeeded in establishing a satisfactory cause for condonation of delay, the complainant seems to be quite unfortunate in convincing the court that the complaint is tenable, and there is no bar of principle of res judicata and bar of section 59 of the MRTU & PULP Act, 1971. Thus, though the complainant is winning on one front, he is losing one most important front about the tenability of the complaint itself. Hence, the complaint as such will have to be dismissed, being not tenable. ... ... ...These observations indicates that the Industrial Court opined that the plea covered by Section 25-H of the Act was raised, adjudicated upon and finally decided and, as the plea was finally decided, the decision in the earlier proceedings operates as res judicata in the instant proceedings.5.Before we deal with the legal question arising in this petition, it has become necessary to go backward. The workmen, whose cause is being expoused by the petitioner, were retrenched from service with effect from July 26, 1984 and July 30, 1984. The retrenchment orders/notices were challenged under section 78 of the Bombay Industrial Relations Act. The only question which was raised and adjudicated upon was whether the retrenchment had been ordered after following due process of law. The Labour Court and the Industrial Court upheld the contention of the management that the retrenchment was ordered after complying with the provisions of Sections 25-F of the Act. Before the single Judge of this Court, it was agitated by the workmen that the plea whether approach notice was given or not was never put in issue. The learned Judges constituting the Division Bench observed that this question cannot be gone into in appeal arising in writ proceedings. No other question was agitated in this Court. This Court only answered the question that was raised before it that the retrenchment was made after complying with the provisions of Section 25-F of the Act. The plea which has been raised in these proceedings is that the respondent-company started its manufacturing activities in September 1989 and that it had employed 78 workmen and out of these 78 workmen, 36 workmen are those who were retrenched earlier and they were given employment. The petitioner says : not giving employment to the other workmen who were retrenched on identical grounds as those who have been taken back in service, amounts to victimization. The plea of the petitioner as unfolded in the complaint is squarely based on Section 25-H of the Act which reads thus :-"25H. Re-employment of retrenched workmen. Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall in such manner as may be prescribed, give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen who offer themselves for re-employment shall have preference over other persons."The opportunity as enjoined by this section has to be given to the retrenched workmen after the employer decides to proceed with his manufacturing activities. The case of the respondent has throughout been that in view of the recession in the market, it curtailed its manufacturing activities and that reduction in manufacturing activities necessitated retrenchment of the employees. Once the company decides to recommence its manufacturing activities and to give employment to persons, the condition precedent as enjoined under Section 25-H has to be complied with. It cannot be disputed that this plea was not available to the workmen in 1984 when the retrenchment orders/notices were issued. It became available to them only after the manufacturing activities were started in September 1989. What was in issue in the earlier proceedings was whether the retrenchment was valid and not whether the retrenched workmen have to be offered employment as envisaged by Section 25-H of the Act. In order to attract the plea of res judicata, it is necessary to establish that the matter was in issue in the former proceedings and the matter must have been in issue directly and substantially. A matter cannot be said to be directly or substantially in issue in a suit or lis unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. The word `substantial means of importance and value. A matter is substantially in issue if it is of importance and value for the purpose of decision of the main proceedings. The question raised in the instant proceedings was not even remotely raised before the Labour Court or the Industrial Court or this Court in the earlier proceedings. The conclusion arrived at by the Industrial Court that the decision in the earlier proceedings operates as res judicata is not only illegal but factually incorrect.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The opportunity as enjoined by this section has to be given to the retrenched workmen after the employer decides to proceed with his manufacturing activities. The case of the respondent has throughout been that in view of the recession in the market, it curtailed its manufacturing activities and that reduction in manufacturing activities necessitated retrenchment of the employees. Once the company decides to recommence its manufacturing activities and to give employment to persons, the condition precedent as enjoined under Sectionhas to be complied with. It cannot be disputed that this plea was not available to the workmen in 1984 when the retrenchment orders/notices were issued. It became available to them only after the manufacturing activities were started in September 1989. What was in issue in the earlier proceedings was whether the retrenchment was valid and not whether the retrenched workmen have to be offered employment as envisaged by Sectionof the Act. In order to attract the plea of res judicata, it is necessary to establish that the matter was in issue in the former proceedings and the matter must have been in issue directly and substantially. A matter cannot be said to be directly or substantially in issue in a suit or lis unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. The word `substantial means of importance and value. A matter is substantially in issue if it is of importance and value for the purpose of decision of the main proceedings. The question raised in the instant proceedings was not even remotely raised before the Labour Court or the Industrial Court or this Court in the earlier proceedings. The conclusion arrived at by the Industrial Court that the decision in the earlier proceedings operates as res judicata is not only illegal but factually incorrect.