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Workmen of the CochIn Lighterage Corporation Vs. Paul Abrao - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1974)IILLJ206Ker
AppellantWorkmen of the CochIn Lighterage Corporation
RespondentPaul Abrao
Cases ReferredKumara Velu v. Ramaswamy
Excerpt:
- - for instance, it is a well-known rule now made clear by the wording of section 11 itself, that in order that section 11 might apply, the court that decided the former action must be competent to try the latter suit. this is also well-established, the supreme court having spoken on the matter as early as 1953 in srimati raj lakshmi dasi and ors. the only statutory provision to which advertance need be made-no other provision was brought to our notice-is section 36 of the industrial disputes act, 1947. a reading of this section would clearly show that this section would not enable a union to represent the workmen in a civil action before a court of law. we do not think that the converse will hold good......the original order of reference was the following:whether the action of the employers, (1) shri paul abrao of m/s. paul abrao and sons, cochin, and (2) the cochin lighterage corporation, cochin-1, in not providing work for the workmen specified in schedule ii who were engaged in floating craft prior to and as on 1st june, 1962 or thereafter, is justified2. sri paul abrao, mentioned in the issue referred to the tribunal, by an indenture dated 1-10-1962, assigned some portion of the business of the firm m/s. paul abrao and sons which was functioning as clearing and forwarding agents and as stevedores, to his brothers who formed themselves into a separate and independent partnership under the name and style of the cochin lighterage corporation for taking over the business transferred......
Judgment:

P. Govindan Nair, C.J.

1. This is an appeal from the judgment of Nambiyar, J., allowing Original Petition No, 871 of 1969, The learned Judge allowed the petition in which the first prayer was for the issue of a writ of certiorari or other order or direction quashing Ext. P19 produced along with the original petition. The appeal is by the workmen of the Cochin Lighterage Corporation represented by the general secretary, Cochin Port Cargo Labour Union. It was at the instance of this union that the dispute was referred to the Tribunal that passed Ext. P 9 order. The dispute was numbered as CGIT-97 of 1964. The first issue referred for the adjudication of the Tribunal as is seen from Ext. P1 produced along with the original order of reference was the following:

Whether the action of the employers, (1) Shri Paul Abrao of M/s. Paul Abrao and Sons, Cochin, and (2) the Cochin Lighterage Corporation, Cochin-1, in not providing work for the workmen specified in schedule II who were engaged in floating craft prior to and as on 1st June, 1962 or thereafter, is justified

2. Sri Paul Abrao, mentioned in the issue referred to the Tribunal, by an indenture dated 1-10-1962, assigned some portion of the business of the firm M/s. Paul Abrao and Sons which was functioning as clearing and forwarding agents and as stevedores, to his brothers who formed themselves into a separate and independent partnership under the name and style of the Cochin Lighterage Corporation for taking over the business transferred. That firm had been registered under the Indian Patnership Act. The Cochin Lighterage Corporation, which, for brevity, we shall refer to it as the 'Corporation' hereafter, took over the cargo boats, barges and tugs with all appurtenances for a consideration of Rs. 1,75,000 and the possession of those articles was admittedly with the Corporation therafter. The indenture also provided that the Corporation would take into their service all tindals, serangs, drivers, lascars and others till then in the employment of Paul Abrao & Sons in respect of the boats, barges and tugs transferred without any break in service. The document also stipulated that the partners of the Corporation had no rights of employment under Paul Abrao. It was the case of Paul Abrao and his heirs after Paul Abrao's death-they are the petitioners in the original petition-that after the deed of 1-10-1962, the workmen referred ceased to be the employees of Paul Abrao and of the firm Messrs.' Paul Abrao and Sons and had become exclusively the workmen of the Corporation. Some disputes arose from this stand of Sri Paul Abrao and M/s. Paul Abrao and Sons which gave rise to sathyagrahy in front of the business house of M/s. Paul Abrao and Sons which in its turn resulted in the institution of two suits, O.S. No. 27 of 1964 of the sub-Court, Cochin and O.S. No. 55 of 1961 of the sub-Court, Ernakulam. The plaint, the written statement and the judgment in O.S. No. 27 of 1964 were produced before the Tribunal and the contention was raised by Sri Paul Abrao and by his legal heirs after Paul Abrao's death that the question as to whether there was any employer-employee relationship between the workmen of the Corporation on the one hand and Sri Paul Abrao and/or Messrs. Paul Abrao and Sons on the other, was the subject-matter of two specific issues, Issues 3 and 8 in O.S. No. 27 of 1964 in the sub-Court, Cochin, that those issues had been decided against the workmen by paragraph 4 of the judgment Ext. P10 in that case and that in view of the findings entered on those issues by the civil Court, the Industrial Tribunal is precluded from considering that aspect on the principles of res judicata. The 1st defendant in O.S. No. 27 of 1964 was the Cochin Port Cargo Labour Union and the 2nd defendant, the secretary of that union. Though the union and its secretary were made ex nomine parties to the suit, it is the case of the petitioners in the original petition, respondents 1 to 4 in this writ appeal, that the real parties were the workmen of the Corporation and that the decision is binding on the workmen. This contention was negatived by the Tribunal by the order Ext. P19 which was impugned in the original petition. Nambiyar, J., set aside Ext. P 9 order and held that the decision in the civil suit was a bar, on the principle of res judcata and precluded the Industrial Tribunal from considering issue No. 1 in so far as it related to the question whether the said workmen were or wire not employees of Sri Paul Abrao and/or of Messrs. Paul Abrao and Sons. The question arising for decision in this appeal is whether the view taken by the learned Judge is the correct view.

3. Section 11 of C.P.C. as such is admittedly not applicable and cannot be relied on on its terms for deciding the question. This is admitted by counsel on both sides. What is contended is that Section 11 after all only embodies the principle, it is said, in an attenuated form, of a rule of estoppel termed at times as res judicata and that on the general principles respondents 1 to 4 are entitled to contend that the matters settled by a solemn judgment of a civil Court should not be reagitated even if it arises before an Industrial Tribunal on the basis of a reference. General principles of res judicata are in certain respects at least wider than the principles laid down under Section 11 of the Code of Civil Procedure, are not doubted. For instance, it is a well-known rule now made clear by the wording of Section 11 itself, that in order that Section 11 might apply, the Court that decided the former action must be competent to try the latter suit. This principle at one time rested only on the judgment of Sir Barnes Peacock in Mussamut Edun v. Mussamut Bechun reported in (1867) 8 Suth. W.R. 175 and the Calcutta High Court in Run Bahadoor v. Singh Lucho Koor reported in (1881)6 Cal. 406, had taken a different view. The view of Sir Barnes Peacock had been accepted by the Privy Council in appeal in Run Bahadoor Singh v. Lucho Koor reported in (1885) 11 Cal. 301 from the decision of the Calcutta High Court which was reversed. So even before the Civil Procedure Code specifically stated so, for the purpose of the applicability of the section relating to res judicata in the Code of Civil Procedure, the Court that decided the former suit must have had jurisdiction to try the latter action. *This rule, however, will not apply if what is invoked is the genera] principle of res judicata and not Section 11 of the Code of Civil Procedure. This is also well-established, the Supreme Court having spoken on the matter as early as 1953 in Srimati Raj Lakshmi Dasi and Ors. v. Banamall Sen and Ors. reported in : [1953]4SCR154 . So we have to proceed on the basis that the lack of jurisdiction of the civil Court to decide industrial disputes by itself will not preclude the principle of res judicata from applying in a given case. But there are further questions that have to he considered before it can be postulated that an Industrial Tribunal is precluded from deciding an issue referred to it by the Government.

4. The contention that was raised on behalf of the appellants before Nambiyar, J , that the defendants in the suit O. Section 27 of 1964 had no competency to represent the workmen who were not parties to the suit was negatived by the learned Judge on the ground that it was lacking in bona fides It is true that the defendants did put forward the case for the workmen as is seen from the written statement Ext. P12 produced along with the original petition. But in a civil action, unless the persons before a Court were competent to represent those who were not parties, the decision in the case will not be binding on those who were not parties unless the judgment was one in rem. This is an accepted principle. It appears to us that the learned Judge felt that the belated plea raised for the first time in that manner before this Court was perhaps a frivolous one and not worthy of consideration. With great respect we doubt whether such a plea could be brushed aside in that manner. The learned Judge assumed that by some principle of law or by virtue of some statutory provision a union was entitled to represent the workmen in an establishment in a civil action before a Court of law. We know of no principle of law nor of any statutory provision which would enable a union to do so. The only statutory provision to which advertance need be made-no other provision was brought to our notice-is Section 36 of the Industrial Disputes Act, 1947. A reading of this section would clearly show that this section would not enable a union to represent the workmen in a civil action before a Court of law. It empowers a union to represent the workmen only before a Tribunal in an industrial dispute. The only provision in the Code of Civil Procedure regarding recognized agents is that contained in Rule 2 of Order III. Apart from those that will fall under Sub-rule (b) of Rule 2,-a provision which is admittedly not applicable-the other recognized agents by whom appearances, applications and acts may be made or done before a civil Court are persons holding powers-of-attorney authorising them to make and do such appearances, applications and acts on behalf of such parties. It was not suggested that the workmen had executed powers-of-attorney in favour of the secretary authorising him to make and do such appearances, applications and acts on behalf of them before a civil Court. In the absence of any such authorisation, they were incompetent to respect the workmen. The only other provision in the Code of Civil Procedure which may be relevant is that in Rule 8 of Order 1 which admittedly had not been complied with. So even if the defendants, the union and the secretary, attempted to safeguard the interests of the workmen by pleading on their behalf and after the preliminary stages, vanishing from the scene, such acts by them cannot be acts on behalf of the workmen. This is an important aspect which has to be borne in mind. Perhaps everybody acted bona fide- if that expression is understood merely as an honest act; not honest in the sense that it was an act done after due care and attention or after reaching a conclusion on grounds which are reasonable. Even then the decision will not be binding on the workmen. We believe we have not been too technical in this aspect of the matter ; It appears to us to be a fundamental principle that before a civil Court, only the parties themselves or their authorised agents alone can plead and if the parties or their authorised agents were not before the Court the decision will not be binding on those who were not on the party array. We, therefore, seriously doubt whether the civil Court decision in O.S. 27 of 1964 as such is at all binding on the workmen ; in fact, it appears that there is no decision at all against the workmen ; we go further and say as far as the workmen are concerned it is non est.

5. The case involves a further important principle. The Industrial Tribunal is a special Tribunal clothed with special powers, powers so extraordinary that it can ignore the established law of contract and other principles of strict law and is enabled to adjudicate on the rights of parties before it and empowered to make adjustment in the employer-employee relationship which a Court will never be able to provide for. It is not denied before us that the Industrial Tribunals are specials Tribunal clothed with special powers. The body of workmen are entitled to espouse the cause of workmen under the Industrial law, even without their consent or against the will of the workmen. This is a peculiar feature of Industrial law. Thus, what the union may be urging or the body of the workmen as such may be urging may not always be the industrial rights of a particular workman but the right of the union or the body of workmen. It is a fundamental aspect of Industrial law that a body of workmen as such have a grievance when any workman has been dealt with unfairly by an employer. The very concept of industrial law is based on collective bargaining. It is the strength and the right of the collective group. Even if a workman has been silenced either by threat of force, indimidation, or by persuasion or even if he had been purchased or bribed, it is open to the body of workman to protest against the action and successfully agitate before an Industrial Tribunal. There the union or the body of workmen are exercising their own right. In that capacity the union was not before the civil Court. They were said to be there representing the work-men who claimed to be the employees and not as representing themselves in their own right to have the treatment meted out to the workmen, rectified.

6. Apart from this, a matter which is specially within the jurisdiction of an Industrial Tribunal, we think, cannot be decided by a civil Court at all notwithstanding the comprehensive conferment of jurisdiction on the civil Courts by Section 9 of the Code of Civil Procedure. It has all along been an accepted principle that by conferment of special jurisdiction on special Tribunals by special statutes, the jurisdiction of the civil Courts to try all civil suits can be barred. It is unnecessary to refer to the various enactments providing for such special procedure, creating special Tribunals ; suffice it to say that the Industrial Tribunal is one such and this is so cannot be gainsaid. So an issue that arises before the Industrial Tribunal taken before it by the body of workmen in exercise of their rights to challenge the action of the employer against the workmen is an issue which can never be tried by the civil Court; it has no jurisdiction ; any decision by that Court on that issue will be of no effect. So if it be contended that the issue before the Industrial Tribunal which we have read has been decided by the civil Court, the simple answer to the question is, it is a decision without jurisdiction and that, therefore, it can never operate as res judicata because it is a void decision. We have a direct authority on this aspect by Justice Veeraswami of the Madras High Court as he then was in the decision in Krishnan and Anr. v. East India Distilleries and Sugar Factories Ltd. Nellikuppam and Anr. reported in 1964-I L.L.J. 217. There are observations in another decision of the Madras High Court in Burmah Shall and Storage and Distributing Co. of India Ltd., Madras v. The Labour Appellate Tribunal of India, Madras Bench and Ors. reported in : AIR1957Mad60 , which support the above principle. We may extract that passage:

The High Court had no exclusive or even concurrent jurisdiction to decide an industrial dispute or the issues incidental thereto.

7. Counsel on behalf of the respondents placed great reliance on the decision of the Supreme Court in Srimati Raj Lakshmi Dasi and Ors. v. Banamall Sen and Ors. reported in : [1953]4SCR154 , and contended that the fact that a civil Court before which the latter action had been filed had no jurisdiction to decide a matter which was exclusively within the jurisdiction of a special Tribunal or a special Court, will not prevent the application of the principle of res judicata that the decision that had been rendered by the special Court was a bar. The case dealt with the question of apportionment of compensation in a land acquisition matter; the District Judge acting as the special Court in land acquisition matters having decided on the apportionment earlier on a particular basis. The question again arose before a civil Court in a suit for partition and the contention that the decision of the Land Acquisition Court will not bar the consideration of the question on the principles of res judicata was negatived by the Supreme Court by applying the general principles of res judicata. We do not think that the converse will hold good. If the earlier decision was rendered by a civil Court in regard to a matter which was exclusively within its jurisdiction of an Industrial Tribunal, the decision will have to be ignored because by a wrong assumption of jurisdiction by the civil Court, the exclusive jurisdiction of the Industrial Tribunal cannot be ousted.

8. With great respect we think that the I decision of the Privy Council in Kumara Velu v. Ramaswamy reported in (1933) P C. 183, relied on by the learned Judge, does not help to solve the controversy.

9. In the result, we allow this writ appeal, set aside the judgment under appeal and dismiss the original petition We direct the parties to bear their respective costs.


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