A.N. Ray, J.
1. The petitioner Walword Transport Ltd. has Impeached the award of the First Industrial Tribunal. It was contended, first, that the decision of the Tribunal that car salesmen were workmen within the meaning of the term in the Industrial Disputes Act was erroneous and trial the Industrial Tribunal had no jurisdiction in the matter if the car salesmen were not workmen; secondly, it was contended that the decision of the First industrial Tribunal was barred by res judicata by reason of an earlier decision of another Industrial Tribunal between the petitioner company and its workmen where it had been held that car salesmen were not workmen doing manual or clerical work; thirdly, it was contended that the issue before the industrial Tribunal being whether termination of services of Sarbasri K, P. Chakravorty and D. N. Ghosh was justified and the Tribunal having come to the conclusion that the termination was justified the award of compensation was in excess of jurisdiction.
As to the first contention that car salesmen ate not workmen within the definition of Industrial Disputes Act the Tribunal came to the conclusion that on the evidence the car salesmen did not have to do any technical work as mentioned In the amended section in the definition of workmen. The Industrial Tribunal further held that the car salesmen had to open the bonnet of the car to snow the various parts of the car, and had to write orders, collect money, grant receipts, fill in order forms, calculate hire-purchase charge and to attend service after sale, me Industrial Tribunal held that the duties of the car salesmen did not differ in essence from that of a salesman of any other commodity, as for example, a salesman in a cigarette factory or a salseman in a cotton goods sales organisation. The Tribunal further said,
'In all these cases as in the present case, salesman has to sell articles, receive money, do some clerical work and has to pick up some detailed knowledge about the commodity he deals in to induce the buyer to purchase his goods. If a salesman with the advantage of his general education gathers specialised knowledge in cigarette or cotton textiles over the long period of his work as a salesman of such commodity, that would not raise his work to the level of technical work in respect of such commodities. His work will continue to be the same as it was before, and I consider it to be nothing but manual and clerical combined'.
This finding was challenged by Counsel for the petitioner as erroneous or based on no evidence at all. On behalf of the workmen there is the evidence that a salesman moves over from place to place and further that salesman's main duty is to contract the prospective purchasers of the new vehicles. Counsel on behalf of the workmen contended that inasmuch as the workmen had to travel and further that there was evidence that they had to open the bonnets of cars there was sufficient evidence to come to a conclusion that they were doing manual and clerical work and were therefore workmen.
3. It is true that the decision of the Tribunal will not be open to review either by way of appeal or by way of appraisement of evidence. If there is ho evidence at all the finding may be challenged. Mr. Ginwalla relied on the decision of Shoreditch Assessment Committee case reported in Rex v. Assessment Committee of the Metropolitan Borough of Shoreditch, 1910-2 KB 859 to illustrate as to how the finding of fact could be challenged by way or certiorari. Farwell L.J. said,
'It is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure ..... and it is immaterial whether the decision... .on the question or the existence or non-existence of its own jurisdiction is founded on law or fact.'
Counsel for the petitioner contended that as to the filling in of forms the evidence was that in some cases forms were filled in by others. As to the opening of bonnets of cars Counsel contended that that was not manual work. Mr. Ginwalla contended that the test of a workman was what that workman was employed to do. The business of a car salesman, he contended, would require qualities of initiative and imagination in the matter of sales of can and that there was nothing manual or clerical in the work. Mr. Ginwalla contended that the Tribunal usurped jurisdiction by an erroneous decision that car salesmen were workmen.
4. It has recently been held in Workmen of Kettle-well Bullen and Co. Ltd. v. Kettlewell and Co. Ltd. : (1960)IILLJ189Cal that the Court will not review the findings of tact reactied by the inferior Court even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the legislature does not choose to confer a right of appeal against that decision the superior Court should not re-hear the case on the evidence and substitute its own findings in certiorari. The Court interferes if there is a plain excess of jurisdiction. Where the question of jurisdiction turns upon the disputed questions of fact the Court generally declines to interfere. It therefore, becomes difficult to interfere in the present case on the finding of fact or on the question reached as to whether the car salesmen were workmen or not within the definition of the Industrial Disputes Act.
5. The second contention of Mr. Ginwalla was that the present decision is barred by res judicata. He relied on the decision of Burn and Co. v. Their Workmen : (1957)ILLJ226SC . It was held by the Supreme Court that the legislation regulating the relation between capital and labour should seek to ensure to the workmen who have not the capacity to treat with capital on equal terms fair returns for their labour and should also seek to prevent disputes between the employer and the employees. The Supreme Court had to consider the question as to whether the award by the Industrial Tribunal could be reopened by the parties. Ordinarily an award is binding for one year. A question arose that if after an award had been given on a matter in controversy between the parties either of them repudiated the award under Section 19(6) what would happen. It was held that it would be contrary to the well recognised principle that a decision once rendered by a competent authority on matter in issue between the parties after a full enquiry should be permitted to be reagitated. Though the doctrine of res judicata as embodied in Section 11 of the code of Civil Procedure might not apply with full vigour there is no reason why the decision of Industrial Tribunal should not be subject to the maxim 'Interest reipublicae ut sit finis litium'. The rule is dictated by wisdom. There must be finality to litigation. It is only when the circumstances are changed, that new controversies between the parties can be agitated. In the present case It Is indisputable that in an earlier decision a Labour Tribunal held that car salesmen were not workmen within the definition as it then stood, workmen then included persons who were doing manual and clerical work. Car salesmen were held not to be doing manual and clerical work. The workmen being dissatisfied with the decision came up before this Court on an application under Article 226 of the Constitution. Subsequent to the order of reference in the then dispute the definition of workmen was slightly changed and it included persons doing technical and supervisory work. An attempt was made on behalf of the workmen to contend that workmen were doing technical and supervisory work and therefore they were workmen. That contention was negatived. Counsel for the petitioner In the present case contended that relying on the decision the petitioner company arranged its affairs and inasmuch as there had been a decision unless it could be shown that circumstances were changed the same decision should govern. Counsel on behalf of the workmen did not contend that there was any change of circumstances, The only contention on behalf of Counsel for the petitioner as well as Counsel on behalf of the State was that in the earlier decision the parties were different, viz., the company and another workman and the Union was different and the subject-matter was also different. I am unable to see how the subject-matter was different. One of the disputes was whether car salesmen were workmen or not. The petitioner company was a party. The Union represented the workmen collectively. In Industrial Disputes different Unions may at different time espouse the cause of the workmen. Such representation of Unions does not in my opinion make them different parties in the sense that parties are understood in the Industrial relations and Industrial disputes. In my opinion Mr. Ginwalla's contention is sound and correct. I do not see any reason as to why the impugned award should not be held to be bad on the ground of res judicata. The same question having been decided not long ago and there having been no change of circumstances to show that there should be different consideration I am of opinion that the decision is hit by the mischief of res judicata.
6. The third contention of Mr. Ginwalla is that the award is in excess of jurisdiction. The question before the Industrial Tribunal was whether the termination of services of car salemen was justified. The issue as framed before the Industrial Tribunal was : 'Whether the services of Sarbasri K. P. Chakravarty and B. N. Ghose Is justified; What reliefs are they entitled to?' Counsel for the petitioner contended that the relief the two persons would be entitled to would follow the answer to earlier limb of the issue. The part having been answered against the two persons, Mr. Ginwalla contended that they were not entitled to any relief.
7. Counsel on behalf of the workmen and counsel on behalf of the State contended that the jurisdiction of the Industrial Tribunal was wide enough and it had jurisdiction to award compensation. It was contended that the Tribunal could award compensation in cases of retrencnment. It was further contended that the Tribunal had jurisdiction while permitting dismissal to award compensation. In my view neither of these two contentions applies to the present case. The Industrial Tribunal held that the termination of the services was not by way of retrencnment and further held that the management was not influenced by extraneous consideration or improper motive. The termination was fully justified. Yet the Tribunal said that the employees were entitled to some relief. In the case of J. K. Iron and Steel Co. Ltd. v. Iron and Steel Mazdoor Union : (1956)ILLJ227SC , the Supreme Court held that Industrial Tribunal had jurisdiction under the Industrial Disputes Act to make an award, and though their powers were wide there were limitations. The powers were derived from the statutes that created them. They are to function within the limits Imposed there and to act according to its provisions. Mahajan, J., as he then was, in the case of Bharat Banx Ltd Delhi v. Employees of the Bharat Bank Ltd. Delhi : (1950)NULLLLJ921SC , said that the powers of Court were to be exercised not in an arbitrary or in absolute fashion because benevolent despotism is foreign to a democratic constitution. In the case of J. K. Iron and Steel Co. Ltd. : (1956)ILLJ227SC , the Supreme Court said that the Industrial Courts or the Labour Tribunals were retired to confine themselves to pleadings and issues and to ascertain the real disputes between the parties to narrow the area of conflict and to see just where the two sides differed. It was further held that it was not open to the Tribunal to fly off at a tangent and disregarding the pleading to reach any conclusions that they think are just and proper.
8. In the present case I am of opinion that the award of compensation is totally in excess of jurisdiction. The Industrial Tribunal for some reason or other allowed itself to award compensation when the Labour Tribunal had no such power to award any. Counsel on behalf of the State relied on the decision of the Supreme court reported in Swadesamitran Ltd., Madras v. Their Workmen : (1960)ILLJ504SC , in support of the contention that if compensation had been awarded by Labour Tribunal it was not open to challenge. It was held in that case that compensation awarded to retrenched workers was a matter of discretion for Labour Tribunal and as such it was not open to challenge. In the present case it was not within the discretion of the Labour Tribunal to award compensation. If it had been a case of retrenchment or it had been a case of wrongful dismissal compensation would have been within the jurisdiction of the Tribunal and the court would not have interfered with it. As I have already indicated in the present case there is no question of retrencnment or wrongful dismissal and therefore there is no jurisdiction to award compensation.
9. I therefore hold that the award is bad and I quash the same. The rule is made absolute. The union should pay costs of the petitioner. The State will bear and pay its own costs.