Debiprasad Pal, J.
1. Sri Bindeshwari Singh, the respondent No. 4 in this petition was an employ of the petitioner-company. On 22nd November, 1966, he met with an accident and was admitted to the I.S. Hospital, Chinsurah, District Hooghly, He was duly plastered and discharged from the hospital, Subsequently he was placed under the treatment of Dr. K.L. Dutta, the then Medical Officer of the company. Dr. Dutta referred him to Dr. G.K. Chowdhury, who is a specialist. The respondent No. 4 filed a claim case before the Commissioner, Workmen's Compensation Court, Calcutta under the Workmen's Compensation Act, 1923 (hereinafter referred as to the Compensation Act). By a judgment dated 7th May, 1969, the Additional Commissioner, Workmen's Compensation Court. Calcutta in the claim case No. 274 of 1968 held that the respondent No. 4 had suffered permanent partial disablement to the extent of 45% and that his capacity to work had been impaired to that extent and that should be the percentage of loss of earning capacity. The Additional Commissioner, therefore, granted a compensation of Rs. 4,410 less Rs. 900 which had already been paid by the company. The sum of Rs 3,510 was determined to be the amount of compensation payable by the company. The respondent No. 4 was declared fit for normal work by Dr. G.K. Chowdhury, M.B.F.R.C.S. Surgeon-in-Charge, Orthopaedic Department and Assistant Professor of Surgery, Nilratan Sircar Medical College and Hospital, Calcutta, who gave a certificate dated 19-10-1968 to that effect. With such medical certificate respondent No. 4 made an application to the petitioner-company on 22-10-1968 contending, inter alia, that since he had become fit to resume normal duty he should be absorbed in the employment of the petitioner-company from 23-10-1968. The company, however, by a letter, dated 23-11-1968 informed the respondent No. 4 that as he had claimed permanent partial disablement benefit in the claim case before the Commissioner of Workmen's Compensation, the resumption of his normal work did not arise at all. Thereafter the Government of West Bengal by an order dated 18th February, 1969, referred under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) the industrial dispute between the petitioner-company and their workmen represented by Naihati Electric Supply Co. Ltd. Employees Association to the 8th Industrial Tribunal, West Bengal on the following issues:
Whether refusal of employment to Sri Bindeshwari Singh is justified? What relief, if any, he is entitled to?
The company and the workman filed writ-ten statements before the Industrial Tribunal. The Tribunal by an award dated 14th March, 1970 held that since respondent No. 4 was still an employee of the company, the refusal of employment to him was not justified and that he was entitled to resume his normal work and usual wages from 31-11-1968. Aggrieved by the said award the petitioner moved this Court and obtained a rule nisi.
2. The main contention urged on behalf of the petitioner is that refusal of employment cannot be a subject-matter for adjudication by the Industrial Tribunal as it is not specified in the Second Schedule or the Third schedule of the Act and the Industrial Tribunal had no jurisdiction to adjudicate such a dispute. This contention raised on behalf of the petitioner has no substance and should be rejected. Under Section 7A of the Act the Tribunal is empowered to adjudicate industrial dispute relating to any matter whether 'specified in the Second Schedule or the Third Schedule to the Act. In the order of reference the issue referred to the Tribunal under Section 10 of the Act is stated to be a matter specified in the Second Schedule to the Act. Item 6 of the Second Schedule refers to all matters other than those specified in the Third Schedule to the Act. Therefore, all matters connected with industrial disputes which are not specified in the Third Schedule and which do not come under Item Nos. 1 to 5 of the Second Schedule will be covered by Clause 6 Section 2(k) of the Act defines an industrial dispute to mean any dispute or difference between the employer and workmen which is connected with the employment or non-employment or the terms of employment or with the conditions of labour of any person. The expression 'terms of employment' is wide in its amplitude and embraces within its scope disputes regarding refusal of employment and comes within the definition of an industrial dispute. Item 6 of the Second Schedule covers such matters relating to industrial disputes which are not specified in the Third Schedule. In my view the Tribunal had the jurisdiction and competence to adjudicate such dispute which has been referred to it under Section 10 of the Act.
3. The next contention urged by the learned Counsel on behalf of the petition is that the Tribunal had exceeded its jurisdiction in deciding the question of refusal of employment to the respondent No. 4 in view of the finding arrived at by the Additional Commissioner of Workmen's Compensation that the petitioner had been permanently partially disabled within the meaning of Section 2(g) of the Compensation Act. In other words it is contended that the finding given by the Workmen's Compensation Court that the petitioner is permanently partially disabled and Compensation allowed on the basis thereof cannot be the subject-matter of a fresh adjudication before the Industrial Tribunal. The principle of res judicata, it is contended, will apply to such a proceeding and it is not open to the Tribunal to arrive at a finding contrary to that of the Workmen's Compensation Court and to proceed on the footing that the respondent No. 4 is an employee of the petitioner-company who ha* been refused employment.
4. To examine this contention it is necessary to bear in mind that an Industrial Tribunal is not a 'court' in the technical sense. It may exercise judicial power and may decide matters brought before it judicially or quasi judicially. It may be clothed with some of the powers of the Court, e.g., to compel witnesses to appear, to administer oath and to follow certain rules of procedures. It may have to act judicially and reach its decision in an objective manner. In other words, although a Tribunal may be invested with the powers which are sometime described as 'trapping of a court' it nevertheless is not a court which in its technical sense connotes a Tribunal constituted by the State as a part of ordinary hierarchy of courts which are invested with the State's inherent judicial power Engineering Mazdoor Sabha v. Hind Cycles Ltd. : (1962)IILLJ760SC . The principle of ouster of the jurisdiction of the civil Court Section 19(2) of the Compensation Act in respect of matters required to be settled or decided by the Commissioner of Workmen's Compensation cannot be extended to proceedings before the Industrial Tribunal which cannot be considered to be a Civil Court, for the purpose of that section. It is true that Section 11 of the Code of Civil Procedure in terms does not apply to industrial matters, still the principle underlying the rule of res judicata and expressed in the maxim 'interest rei publieas ut sit finis Utlum' is founded on sound policy and has been applied by courts for the purpose of achieving finality in litigation. The principle of res judicata is based on the need of giving a finality to judicial decision and is dictated 'by a wisdom which is for all time'. Sheo Parshan Singh v. Ram Nandan Singh (43) Indian Appeal 91. The Supreme Court held in the case of Burn & Co. v. Their Employees : (1957)ILLJ226SC , that there are good reasons why the principle analogous to res judicata should be applicable to decision of the Industrial Tribunal also. Legislation regulating the relation between capital and labour has two objects in view. It seeks to ensure to the workmen who have not the capacity to treat with capital on equal terms, fair return for their labour. It also seeks to prevent dispute between employer and employees, so that production might not be adversely affected and the larger interest of the society might not suffer. The Supreme Court in the aforesaid case expressed the view that an award fixing wages scales should not be unsettled unless a change of circumstances has occurred justifying their adjudication, as, in that event, the awards would turn out to be but truces giving parties breathing time before resuming hostile action with renewed vigour. The subsequent decision of the Supreme Court, however, show a notable shift in the trend. It has been held in the case of Management of Shadarah Delhi Saharampur Light Railway v. S.S. Railway Workers' Union (1969) S.C. 513, that application of technical rules such as res judicata, acquiesence, estoppel are not appropriate to industrial adjudication. The earlier decision of the Supreme Court in the case of Burn & Co. v. Their Employees, was considered and on a review of the several decisions of the Supreme Court, doubts have been expressed as to whether principle analogous to res judicata can appropriately be applied to industrial adjudication.
5. Without entering into such controversy, in order that a particular decision should operate as res judicata, the matter must have been directly and substantially in Issue in the former proceeding. A finding given by the Workmen's Compensation Court as to whether a workman is permanently partially disabled for the purpose of deciding the compensation to be payable to him cannot, in my view, constitute res judicata in a proceeding arising subsequently under a different statute like the Industrial Disputes Act. The objects of the Industrial Disputes Act and those of the Workmen's Compensation Act as also the function to be discharged by the Tribunal are different in their scope and character. The Compensation Act is not concerned with physical injuries as such, nor with the more fact of such injuries on the physical system of the workmen, but it is concerned only with the effect of such injuries or of the diminution of physical power caused thereby on the earning capacity of the affected workmen for the purpose of determining the compensation to be paid to him under that Act, Kalidas v. S.K. Mondal : AIR1957Cal660 . Loss of earning capacity is not necessarily co-extensive with the loss of physical capacity and certainly the former does not prove the latter. The question of loss of earning capacity cannot be determined only by medical evidence which in such a case may be relevant but not decisive, Kalldas v. S.K. Mondal (supra). A finding given in such a proceeding may be a relevant material when a dispute arises under the Act as to whether the person can be allowed to resume his work. But having regard to the scheme and the objects of the two Acts it cannot be said that a finding given by the Workmen's Compensation Court will operate as res judicata in a dispute to be decided by the Industrial Tribunal. In the case of National Tobacco Co. India Ltd. v. Miriyala Kalidas and Ors. A.I.R. 1962 A.P. 160, doubts have been expressed as to the applicability of the principle of res judicata when dispute arises under two different statutes like Industrial Disputes Act and the Payment of Wages Act. But no finding or decision was arrived at on this point in that case. The Tribunals set up under different Industrial legislations are charged with the duty of deciding dispute which arises for the purpose of administration of that particular Act. Investigation into a particular dispute may be made by such a Tribunal keeping in view the relevant provisions, purpose and scheme of that Act. A finding or a decision arrived at by such a Tribunal cannot on principle operate as res judicata when a dispute arises under a different enactment to be decided by a different Tribunal constituted under that Act and invested with the power of adjudication having regard to the statutory provision, scheme and object of that legislation. The jurisdiction of such a Tribunal to decide the dispute cannot be ousted by the principle of res judicata or principle analogous thereto. The finding arrived at by another Tribunal may constitute a relevant material or evidence which the other Tribunal may take into consideration for coming to its own view.
6. Applying this principle to the present case, in my view, the Tribunal did not exceed its jurisdiction in coming to its own view as to whether the respondent No. 4 had become fit to resume normal work and whether he had been refused employment for which the reference has been made to the Tribunal.
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[The portion of the judgment dealing with facts omitted].
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7. In that view of the matter the Tribunal rightly held that the respondent No. 4 was still an employee of the company and in the absence of any such lawful termination he was entitled to resume his normal duty and usual wages in accordance with the rules. At some point of time the learned Counsel for the petitioner contended that there was an automatic termination of the service of the respondent No. 4. I am unable to accept such contention. The Tribunal in my view rightly held that if a person is permanently partially disabled, there is no automatic termination of his service unless the procedures recognised under the law for such termination is resorted to. In the absence of any such termination the employee still remains in the service and is entitled to resume his normal duty and usual wages.
8. For the reasons stated above this rule is discharged. There will be no order as to costs.