JUDGMENT

1. This writ petition is directed against an order, dated 4 July, 1984, passed by the Fifth Industrial Tribunal wherein the Tribunal held that findings of the Seventh Industrial Tribunal in a proceeding under S. 33(2)(b) of the Industrial Disputes Act, cannot in any way stand as a bar in deciding the issue afresh.

2. Before adverting to the rival contentions a brief reference to facts is necessary.

3. The concerned workman being respondent 3, herein was employed by the petitioner as stores cleric in the Paharpur Works of the petitioner's factory. By reason of certain acts on the part of respondent 3, the petitioner, by a notice, dated 14 February, 1981, read with its corrigendum, dated 16 February, 1981, required the concerned respondent to show cause as to why disciplinary proceedings should not be initiated. The respondent in turn showed cause by his letter, dated 19 February, 1981, and since the cause shown by respondent 3 was found not satisfactory, an enquiry was directed. Subsequently, an enquiry officer was appointed to enquire into the charges levelled against the respondent-workman. The enquiry officer made his report on 21 September, 1981, and forwarded the same along with the records of proceedings of the enquiry to the petitioner. The General Manager of Paharpur Works, on consideration, came to the conclusion that the respondent-workman was guilty of the offences, constituting major misdemeanour, and by a letter, dated 26 October, 1981, dismissed the respondent-workman from service with immediate effect. From the facts it appears that at the time of dismissal an industrial adjudication was pending before the Seventh Industrial Tribunal of West Bengal. The petitioner as such, in compliance with statutory provisions applied for approval. The petitioner, however, offered one month's wages to the respondent-workman.

4. The application before the Seventh Industrial Tribunal was registered as Case No. 69 of 1981, and notice whereof was duly sent to the concerned respondent who in turn appeared in the proceeding and filed his written statement. The petitioner made an application before Seventh Industrial Tribunal for hearing of a preliminary issue in regard to the legality and validity of the domestic enquiry held by the enquiry officer. The Seventh Industrial Tribunal admitted the application and during the bearing the investigating officer was examined and cross-examined at length. Subseouently, by the order, dated 24 September, 1982, being Order No. 28, the Seventh Industrial Tribunal came to the conclusion that the enquiry was held in accordance with the principles of natural justice. In the said order the Seventh Industrial also held that the petitioner had come to a bona fide conclusion and respondent 3 was guilty of the charges levelled against him and the dismissal of respondent 3 did not amount to unfair labour practice.

5. By a letter, dated 21 March, 1983, the Paharpur Works Employees' Union, being respondent 2 in the writ petition requested the petitioner for reinstatement of respondent 3 but the same having been rejected, the State Labour Directorate was approached to intervene in the matter and by its Order No. 3809, dated 27 December, 1983, the State Government referred the dispute for adjudication to respondent 1, being the Fifth Industrial Tribunal, under S. 10 of the Act of 1947. As per direction of the Fifth Industrial Tribunal the parties duly filed their respective statements. Subsequently, on the application of the petitioner for a declaration in regard to the validity and conclusiveness of the finding of the Seventh Industrial Tribunal in regard to the domestic enquiry, the Fifth Industrial Tribunal, came to a conclusion, that the finding of the Seventh Industrial Tribunal cannot be termed to be conclusive inasmuch as, the same was merely prima facie in nature. It is this order which is under challenge in the writ petition under consideration.

6. The question, therefore, falls for consideration as to whether the validity of the domestic enquiry which has been decided under S. 33(2)(b) application can be reopened in an enquiry under S. 10 of the Industrial Disputes Act.

7. Sri R.C Deb, appearing for the writ petitioner, strenuously contended that the nature of the proceedings under S. 33(2)(b) have undergone a drastic change. Referring to the decision of the Supreme Court in the case of Bharat Iron Works v. Bhagubhal Balubhai Patel [1976-I L.L.N 19], Sri Deb contended that there is no difference in principle of law applicable to a case under S. 10 and under S. 33 of the Industrial Disputes Act. In the above cited decision the Supreme Court observed in Para. 1, at page 21:

“When an application under S. 33 whether for approval or for permission is made to a Tribunal it has initially a limited jurisdiction only to see whether a prima facie case is made out in respect of the misconduct charged. This is, however, the position only when the domestic enquiry preceding the order of dismissal is free from any defect, that is to say, free from the vice of violation of the principles of natural justice. If on the other hand, there is violation of the principles of natural justice, the Tribunal will then give opportunity to the employer to produce evidence, if any, and also to the workman to rebut it if be so chooses. In the latter event the Tribunal will be entitled to arrive at its own conclusion on merits on the evidence produced before it with regard to the proof of the misconduct charged, and the Tribunal, then will not be confined merely to consider whether a prima facie case is established against the employee. In other words, in such an event, the employer's findings in the domestic enquiry will lapse and these will be substituted by the independent conclusions of the Tribunal on merits.”

8. The point in issue was further examined by the Supreme Court in Dhantwal (M.S) v. Hindustan Motors [1976-II L.L.N 304], wherein it was observed that if there is violation of the principle of natural justice in the enquiry the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion. The Supreme Court in that decision observed in Para. 17, at page 309:

“From the provisions of S. 33 it is manifest that punitive action by the employer in whatever form it may be passed is permissible against an ordinary workman, as distinguished from a protected workman even during the pendency of proceedings before the Tribunal provided that the employer pays, one month's wages and also applies to the concerned Tribunal for approval of his action. Since the action is punitive, namely, dismissal or discharge for misconduct, the Tribunal has to oversee the action to guarantee that no unfair labour practice or victimisation has been practised thereby. If the procedure of fair hearing has been observed the Tribunal has to find in an application under S. 33 that a prima facie case is made out for dismissal. If, on the other hand, there is violation of the principles of natural justice in the enquiry, the Tribunal can go into the whole question relating to the misconduct and come to its own conclusion whether the same is established.”

9. The same issue came up for consideration again before the Supreme Court in the case of Lalla Ram v. D.C.M Chemical Works, Ltd. [1978-II L.L.N 1], in which the Supreme Court, after considering the earlier decisions, including Bengal Bhatdee Coal case [A.I.R 1964 S.C 486], clearly laid down the position of law as follows in Para. 13 at page 7:

“The position that emerges from the above quoted decisions of this Court may be stated thus: In proceedings under S. 33(2)(b) of the Act, the jurisdiction of the Industrial Tribunal is confined to the enquiry as to—

(i) whether a proper domestic enquiry in accordance with the relevant rules/Standing Orders and principles of natural justice has been held;

(ii) whether a prima facie case for dismissal based on legal evidence adduced before the domestic tribunal is made out;

(iii) whether the employer had come to a bona fide conclusion that the employee was guilty and the dismissal did not amount to unfair labour practice and was not intended to victimise the employee regard being had to the position settled by the decisions of this Court in Bengal Bhatdee Coal Company v. Ram Prakesh Singh [A.I.R 1964 S.C 486], Titaghur Paper Mills Company, Ltd. v. Ram Naresh Kumar [1961-I L.L.J 511], Hind Construction and Engineering Company, Ltd. v. Their workmen [A.I.R 1965 S.C 917], Workmen of Firestone Tyre and Rubber Company of India (Private), Ltd. v. Firestone tyre and Rubber Company of India (Private), Ltd. [1973-I L.L.N 278], Eastern Electric and Trading Company v. Baldev Lal [1975-II L.L.N 312], that though generally speaking the award of punishment for misconduct under the Standing Orders is a matter for the management to decide and the Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe yet an inference of mala fides may in certain cases be drawn from the imposition of unduly harsh, severe, unconscionable or shockingly disproportionate punishment;

(iv) whether the employer has paid or offered to pay wages for one month to the employee; and

(v) whether the employer has simultaneously or within such reasonably short time as to form part of the same transaction applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.

If these conditions are satisfied, the Industrial Tribunal would grant the approval which would relate back to the date from which the employer had ordered the dismissal. If, however, the domestic) enquiry suffers from any defect or infirmity, the labour authority will have to find out on its own assessment of the evidence adduced before it whether there was justification for dismissal and if it so finds it will grant approval of the order of dismissal which would also relate back to the date when the order was passed provided the employer had paid or offered to pay wages for one month to the employee and the employer had within the time indicated above applied to the authority before which the main industrial dispute is pending for approval of the action taken by him.”

10. Relying on the aforesaid decisions Sri Deb contended that proceedings under S. 33(2)(b) ought to be equated with the adjudicatory jurisdiction under S. 10 of the Industrial Disputes Act.

11. Incidentally, the Supreme Court also expressed the same view in the case of Bharat Iron Works v. Bhagubhai Balubhai Patel [1976-I L.L.N 19] (vide supra).

12. Sri Deb further contended that in an application under S. 33(2)(b) the finding ought to be treated as prima facie so far as the merit of the dispute is concerned, but so far as the validity of the domestic enquiry is concerned, the findings ought to be treated as conclusive and has a binding effect in subsequent proceedings. To hold it otherwise, it was contended, would be in any event, multiplicity of litigations which is against the very purpose for which the Industrial Disputes Act was engrafted in the statute book.

13. It is now well settled that the doctrine of res judicata has its application in fall force in regard to the industrial matters. A decision given by a competent Labour Court would operate as a bar in the trial of the same issue in the subsequent proceeding for constructive res judicata. This view finds support from the decision of the Supreme Court in the decision of Punjab Co-operative Bank, Ltd. v. R.S Bhatia [1975-II L.L.N 344].

14. While it is true that a new horizon has opened up and the law, since the direction in Lalla Ram case [1978-II L.L.N 1] (vide supra), has been expanded, but by reason of a Bench decision of this Court which has a binding effect on a Judge sitting singly, I am unable to accept the contention of Sri Deb. This Court, in the case of Graphite India, Ltd. v. State of West Bengal [1980-I L.L.N 505], in Para. 13, at pages 511 and 512:

“The second contention of the appellant-company is that in the proceeding under S. 33(2)(b) of the Industrial Disputes Act, the Tribunal having found that there had been no violation of the principles of natural justice, it was not open to the Tribunal, to hold to the contrary in the present proceeding. In other words, it is urged that the finding of the Tribunal in the proceeding under S. 33(2)(b) that a proper and legal enquiry was held against respondent 4 as required under the law would operate as res judicata in the present proceeding. It is now a well established principle of law that the linding on an issue in order to be resjudicata in a subsequent proceeding, the issue must have been heard and finally decided. In a proceeding under S. 33(2)(b), the Tribunal may approve of the action of the employer against his employee on a prima facie finding that the enquiry held against the employee was proper and legal and that all the principles of natural justice were complied with. The Tribunal is, therefore, not to decide finally as to the legality and propriety of the enquiry but it comes to a prima facie finding in that regard. As the point cannot be said to have been finally decided by the Tribunal, there is no question of the finding of the Tribunal operating as res judicata in a subsequent proceeding. The Karnataka High Court in Amalgamated Electricity Supply Company, Ltd., Belgaum v. Workmen of Amalgamated Electricity Supply Company, Ltd. [1975-I L.L.N 74], has laid down that the finding recorded in proceeding under S. 33(2)(b) regarding the validity of a domestic enquiry cannot be used as res judicata in a subsequent reference under S. 10 even though the questions that arise for consideration are the same. The Supreme Court in G. Mckensie & Co., Ltd. v. Its workmen [A.I.R 1959 S.C 389], has observed that as the purpose of S. 33 of the Industrial Disputes Act is merely to give or withhold permission and not to adjudicate upon an industrial dispute, any finding under S. 33 would not operate as res judicata and bar the raising of an industrial dispute. On behalf of the appellant-company a distinction has been sought to be made between the raising of an industrial dispute and the findings to be made by the Tribunal in such a dispute. It is contended that although there is no bar to the raising of an industrial dispute, the Tribunal will be precluded from holding against the legality of an enquiry by the employer against its workman on the ground of non-compliance of the rules of natural justice, if in a proceeding under S. 33(2)(6) the Tribunal upheld the enquiry as legally and properly held. We are unable to accept this contention. The principles of res judicata out the jurisdiction of the Court or Tribunal to entertain any suit or proceeding. If an issue operates as res judicata, it cannot be raised again in a subsequent suit of proceeding. It, therefore, follows that when the raising of a dispute is permitted and the Tribunal is entitled to entertain the same, there could be no question of res judicata preventing the Tribunal from determining that dispute. The contention made on behalf of the appellant-company in this regard is overruled.”

15. While it is true that while dealing with the matter in Graphite India case [1980-I L.L.N 505] (vide supra), this Court's attention was not drawn to the decisions referred to earlier in this judgment, but in my view a Judge, sitting singly, is bound by the Division bench judgment and as such I am unable to express any other opinion but to follow the opinion expressed in the case of Graphite India (vide supra).

16. A suggestion has been made from the Bar that the matter ought to be referred to a larger Bench, but I am not in a position to accept the contention as the rules of our High Court do not permit a Judge sitting singly to refer the matter to the learned Chief Justice for constituting a larger Bench, even if there be an occasion to have a difference of opinion. In this context reference may be made to the decision of this Court in the case of Hind Tin Industries v. State [1978-II L.L.N 208].

17. In the premises this application fails and is dismissed. All interim orders are vacated. There will, however, be no order as to costs.

18. Operation of this order, however, is stayed for ten days from date.