Holding

An award under Section 33‑A that fails to examine a contravention of Section 33 is not res judicata and does not bar a reference under Section 10(2A).

Summary

During an industrial dispute, two employees were transferred and terminated and filed a complaint under Section 33‑A of the Industrial Disputes Act, alleging that the employer had not complied with the procedural safeguards of Section 33. The Industrial Tribunal awarded that the terminations were justified without first examining whether there was any contravention of Section 33. The Government, relying on that award, declined to refer the matter to the Tribunal under Section 10(2A), invoking res judicata. The High Court upheld the Government’s order, holding that the employees could not seek the same relief twice. The Supreme Court allowed the appeal, observing that a finding on the merits without first determining a breach of Section 33 does not constitute a final decision and therefore cannot operate as res judicata. Consequently, the order refusing reference was quashed and the Government was directed to refer the dispute for adjudication under Section 10(2A).

Issues considered

Whether an award under Section 33‑A that does not consider a violation of Section 33 can be said to be res judicata, thereby precluding a reference under Section 10(2A).
What is the scope and effect of a proceeding under Section 33‑A in relation to a reference under Section 10(2A) of the Industrial Disputes Act.

Legislation cited

Industrial Disputes Act, 1947s. 10(2A), s. 18(1), s. 33, s. 33A

Subjects

Industrial Disputes ActSection 33Section 33-ASection 10(2A)res judicataIndustrial Tribunaltermination of servicelabour law

Judgment

BLUE STAR EMPLOYEES UNION A
v.
EX. OFF. PRINCIPAL SECY. TO GOVERNMENT AND ANR.

SEPTEMBER 26, 2000

[S. RAJENDRA BABU AND D.P. MOHAPATRA, JJ.] B

Labour Law

Industrial Disputes Act, 1947-Ss. 33, 33A and 10(2A)--Complaint
under S.33A-Filing of-Indust;·ial Tribunal-Award without considering C
whether the act C'>mplained of is in contravention of S.33-Reference under
S.10(2A)-Rejection on the ground of res judicata-Validity of-Held,
disposal of application without considering contravention of S.33 does not
operate as res judicata-Order declining reference quashed

During pendency of certain industrial dispute, employee 'M' was D
transferred to another department and the services of employee 'B' were
terminated. The employees made a complaint under Section 33A of the
Industrial Disputes Act, 1947 complaining that the provisions of Section 33
of the Act were not complied with before modifying their service conditions.
Industrial Tribunal passed an award against the employees without considering E
whether the act complained of was in contravention of S.33 of the Act.
Industrial dispute sought to be raised under S.10(2A) was declined by the
Government in view of the award passed by the Tribunal. On challenge, Single
Judge of High Court while upholding the order of Government held that the
workmen could not avail two opportunities for the same relief after
approaching Labour Court in individual capacity under Section 10(2A) of the F
Act. Appellant unsuccessfully filed an appeal before the Division Bench of
the High Court. Hence the present appeal.

• Allowing the appeal, the Court

HELD : 1.1. The single Judge of High Court was not justified in holding G
that an application or complaint under Section 33-A of the Act could become
a reference to the Tribunal under Section 10(2A) of tbe Act. The only
complaint made by the workmen was in their individual capacity under Section
33-A of the Act and not as contemplated under Section 10(2-A) of the Act.
Neither the learned Single Judge nor the Division Bench considered the H
403
404 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.
~-
A scope of the proceedings arising under Section 33-A of the Act and the effect
of findings recorded in such an inquiry. (405-G-H; 406-A] t

1.2. Section 33-A of the Act, in fact, involves consideration of two aspects
of the matter, firstly, whether there has been any violation or contravention
of the provisions of Section 33 of the Act and secondly, whether the act
B complained of is justified or not. Therefore, violation or contravention of the
provisions of Section 33 of the Act would be the justification for the authority
concerned to entertain an application under Section 33-A of the Act. If this
essential requirement is forgotten and if an authority decides a question as
to whether the act complained of under Section 33-A of the Act is justified

c or not cannot in a matter of this nature operate as res judicata or cannot
be treated to have decided the dispute between the parties. (406-D-E-F]

Punjab National Bank v. Their Workmen, (1959) II L.L.J. 666; Punjab
Beverages Pvt. Ltd. v. Suresh Chand, (1978) II L.L.J.I. and Syndicate Bank
Ltd v. K. Ramnath V. Bhat, (1967) II L.L.J. 745, re~ied on.
D 1.3. In the instant case, the Tribunal has not focused its attention to
the question whether there has been any contravention of Section 33 of the
Act to enable it to proceed further to decide whether the employee is entitled
to any relief under the Act or not. To merely consider the question whether
the employee is not entitled to the relief without examining firstly the question
E whether the act complained of is in contravention of Section 33 of the Act
will be one made as obiter or as one made without fulfilling the condition
precedent to exercise of power under Section 33-A of the Act and, therefore,
could not proceed to give a finding as to whether the termination of service
...
of the workman is justified or not Thus, the order of the Government declining
to make a reference under Section 10(2-A) of the Act is quashed and ~
F Government is directed to make a reference for adjudication of the dispute
raised before it. (408-B-C-D]

Orissa Cement Ltd, Rajganpur v. Their Workmen & Anr., (1960) II L.LJ.
91, relied on. I
G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1718 of
1998.

From the Judgment and Order dated 11.6.97 of the Andhra Pradesh High
Court in W.A. No. 521of1997.
L
H Sanjay Ghosh and S. Ravindra Bhat for the Appellant.
BLUESTAR EMPLOYEES UNION v. EX. OFF.PRINCIPALSECY. TO GOVT. [RAJENDRABABU,J.J 405

V.R. Reddy and Dr. Meera Mathur for Mis. J.B. Dadachanji & Co. for A
the Respondents.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. Certain disputes having arisen between the
appellant union and respondent No. 2, a reference was made to the Industrial B
Tribunal [hereinafter referred to as 'the Tribunal'] in l.D. No. 2 of 1990.
Pending adjudication of the said dispute, it is alleged that respondent No. 2
coerced the workmen to individually enter into settlement under Section 18(1)
of the Industrial Disputes Act, 1947 [hereinafter referred to as 'the Act').
However, Balanarsimha and Mallesh refused to sign the settlement. Thereafter,
the respondent No. 2 is stated to have notified the seniority list of mechanics C
of the weigh bridge/weighing machines department, while Mallesh was
transferred, orders of termination of service of Balanarsimha and another was
made. The seniority list exhibited was for the purpose of termination of the
services of the said Mallesh. Balanarsimha and Mallesh made a complaint
under Section 33-A of the Act complaining that the provisions of Section 33 D
of the Act had not been complied with in modifying their conditions of
service. An award was made by the Tribunal holding that the termination of
services of Balanarsimha and Mallesh is justified and dismissed the complaint.
Thereafter, an industrial dispute was sought to be raised and the Government
by an order made on April 8, 1991 stated that the dispute raised does not merit
reference for adjudication as the Tribunal has passed awards dismissing the E
cases of Balanarsimha and Mallesh. This order was challenged before the
High Court in a writ petition. The learned Single Judge took the view that the
workmen cannot avail two opportunities for the same relief once on appearing
before the Labour Court in individual capacity under Section I 0(2-A) of the
Act although application was n;i.ade under Section 33-A of the Act and F
second by employees union of which the appellant is a member and, therefore,
the Government is right in rejecting the application. This view on being
affirmed on appeal before the division bench, this appeal by special leave is
filed.

It is not clear from the order of the learned Single Judge of the High G
Court as to how the conclusion could be drawn that an application or complaint
under Section 33-A of the Act could become a reference to the Tribunal under
Section 10(2-A) of the Act. The only complaint made by the workmen was in
their individual capacity under Section 33-A of the Act and not as contemplated
under Section 10(2-A) of the Act. Neither the learned Single Judge nor the
division bench considered the scope of the proceedings arising under Section H

j
406 SUPREME COURT REPORTS [2000) SUPP. 3 S.C.R.

A 33-A of the Act and the effect of findings recorded in such an inquiry. The
Division Bench proceeded on the basis that the complaint before the Tribunal
having been adjudicated the award would operate as res judicata.

Learned counsel for the appellant contended that if the real scope of
Section 33-A of the Act is borne in mind, there is no impediment in the
B present case to make reference under Section I 0 of the Act, notwithstanding
the awards in question. He further submitted that the awards in question
could not have deeided the question that the dismissal of the workmen is
justified without first examining whether si.1ch termination of service is contrary
to Section 33 of the Act which alone gave competence to the Tribunal to
C proceed further in the matter. We find force in this contention. However, ~hri
V.R. Reddy, learned senior counsel for the respondent, very strenuously
contended that there was no dispute before the Tribunal as to the jurisdiction
and, therefore, there was no occasion for the Tribunal to give a finding on
that aspect of the matter on question whether there has been any contravention
of the terms of Section 33 of the Act to attract the reliefs sought for under
D Section 33-A of the Act. This argument ignores the essential requirement of
Section 33-A of the Act. Section 33-A of the Act, in fact, involves consideration
of two aspects of the matter, firstly, whether there has been any violation or
contravention of the provisions of Section 33 of the Act and secondly,
whether the act complained of is justified or not. Therefore, violation or
E contravention of the provisions of Section 33 of the Act would be the
justification for the authority concerned to entertain an application under
Section 33-A of the Act. If this essential requirement is forgotten and if an
authority deci.des a question as to whether the act complained of under
Section 33-A of the Act is justified or not cannot in a matter of this nature
I
operate as res judicata or cannot be treated to have decided the dispute
F between the parties.
A complaint can be made to the Tribunal under Section 33-A of the Act
if there has been violation or contravention of the provisions of Section 33
of the Act and if it is found that there has, in fact, been such a contravention
the Tribunal can proceed to adjudicate the dispute contained in a complaint
G on its merits. Thus violation or contravention of the provisions of Section 33
of the Act would be the basic question that arises for consideration and
before giving any relief to an aggrieved employee under this section, the
Tribunal has to find out whether the employer's action falls within one of the
following prohibitions contained in Section 33 of the Act :
H (i) If'the dispute pending adjudication has nothing to do with the
BLUESTAREMPLOYEESUNIONv.EX.OFF.PRINCIPALSECY.TOGOVT.[RAJENDRABABU,J.J407

alteration in conditions of service of a workman in contravention A
of Section 33(l)(a) of the Act or alteration of conditions of
service of a 'protected workman' within Section 33(1) of the Act;
(ii) Discharges or punishes a workman by dismissal or otherwise for
a misconduct connected with the pending dispute, without
obtaining prior express permission in writing of the appropriate B
authority as required by Section 33(l)(b) of the Act;
(iii) Discharges or punishes a 'protected workman' by dismissal or
otherwise for a misconduct not connected with the pending
dispute, without obtaining prior express permission in writing of
the appropriate authority as required by Section 33(3)(b) of the C
Act read with Section 33(l)(b) of the Act; or
(iv) Discharges or punishes a workman by dismissal or otherwise for
a misconduct not connected with the pending dispute, without
complying with the provisions of proviso to Section 33(2)(b) of
the Act. D
Thus, the contravention of the provisions of Section 33 of the Act is
the foundation for exercise of the power under Section 33 of the Act. If this
issue is answered against the employee, nothing further survives for
consideration or action by the Tribunal under Section 33 of the Act. In other
words, an application under Section 33-A of the Act without proof of E
contravention of Section 33 of the Act would be incompetent. This is the view
expressed by this Court in several decisions including the decisions in Punjab
National Bank v. Their Workmen, (1959) II L.L.J. 666; Punjab Beverages Pvt.
Ltd. v. Suresh Chand, (1978) II L.L.J. 1 and Syndicate Bank Ltd v. K
Ramnath V. Bhat, (l 967) II L.L.J. 745. Indeed this Court in Orissa Cement Ltd,
Rajganpur v. Their Workmen & Anr., (1960) II L.L.J. 91, while dealing with the F
identical provisions as contained in Sections 33 and 33-A of the Act in a
complaint made l!nder Section 23 of the Industrial Disputes (Appellate
Tribunal) Act, 1950 examined this contention that the finding of the Appellate
Tribunal in the proceedings instituted under Section 23 of the Appellate
Tribunal Act amounted to res judicata and it was not open to the Tribunal G
to consider the validity or the propriety of the impugned order of discharge
in the reference. The Tribunal in that case had held that on the earlier
occasion the Appellate Tribunal had found that there was no contravention
of Section 22 and that was really decisive of the proceedings and held that
the alternative finding made in the said proceedings on the merits was no
more than obiter and cannot be pleaded in support of the bar of res judicata. H
408 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A This Court was not prepared to hold that this view is erroneous and, therefore,
the Tribunal was justified in dealing with the merits Of the dispute.

In the present case, we have been taken through in detail the award
made in the case of Balanarsimha and Mallesh and we find that the Tribunal
has ·not focused its attention to the first of the question whether there has
B been any contravention of Section 33 of the Act to enable it to proceed
further to decide whether the employee is entitled to any relief under the Act
or not. To merely consider the question that the employee is not entitled to
the relief without examining firstly the question whether the act complained
of is in contravention of Section 33 of the Act \f'ill be one made as observed
C by this Court in Orissa Cement Ltd case. as obiter or as one made without
fulfilling the condition precedent to exercise of power under Section 33-A of
the Act and, therefore, could not proceed to give a finding as to whether the
termination of service of the workman is justified or not.

For the reasons aforesaid, we think, the High Court is not justified m
D dismissing the writ petitions and in writ appeal upholding that order. We,
· therefore, set aside the orders of the High Court and quash Letter No. 362/
Lab. I(AI)/91-1 dated April 8, 1991 issued by the Government declining to
make a reference under Section I 0(2-A) of the Act, ·with a direction to the
Government to make a reference for adjudication of the dispute raised before
E it within a period of three months from today. This appeal is, therefore,
allowed. In the circumstances, there shall be no order as to costs.

S.VKL Appeal allowed.