res judicata
advocate satya
(Querist) 03 January 2009
This query is : Resolved
sir
one matter was sub judice before the labour court, the employee even after getting ample opportunity has not given evidence, the court dismissed his matter, after four months he again filed the same petion before labour commissionr stating i was not aware of the date hence my petition was dismissed, so again his petition should be entertained, the commissioner issued notice to the respondent employer, the question is can he give a fresh petition on same ground when it is once dismissed?'
do the priciple of res judicata would not attract? and what about the time barred applicability?
any citation for the same?
Guest
(Expert) 04 January 2009
There are several confusing points in your question.
1. The Commissioner can not be the presididng officer of labour court. The proceedings before him cannot be judicial proceedings.
2.Res Judicata will not be applicable in the proceedings before the Labour Commissioner.
3. It appears that the matter has been dismissed for default and not on merit. Hence, res judicata is not applicable. The Labour Commissioner's action is correct. You contest the case on merits.
Prabhakar
(M)9958670740
Guest
(Expert) 04 January 2009
There are several confusing points in your question.
1. The Commissioner can not be the presididng officer of labour court. The proceedings before him cannot be judicial proceedings.
2.Res Judicata will not be applicable in the proceedings before the Labour Commissioner.
3. It appears that the matter has been dismissed for default and not on merit. Hence, res judicata is not applicable. The Labour Commissioner's action is correct. You contest the case on merits.
Prabhakar
(M)9958670740
advocate satya
(Querist) 05 January 2009
after reference by labour commissioner the matter came to labour court and dismissed when the evidence is not adduced, after this dismissal the labour again goes to labour commissioner for reference to labour court, now is it clear and is res judicata applies?
Kiran Kumar
(Expert) 05 January 2009
Resjudicata applies only where the matter in controversy or the issues have been fully decided by the court...res judicata has further brances for details pls read S.11 of CPC.
since in the mentioned case the matter was dismissed in default...so no issue was decided on merits...therefore the second petition is very much maintainable.
advocate satya
(Querist) 05 January 2009
dear sir
with regards the matter is called to dismissed on default when neither the advocate nor the petitioner appears before the court, here the advocate duly comes in all the dates and shows his inability to adduce evidence, is this is dismissal on default? further my question is when it is already dismissed on merits and time limit of thirty days expires even considring your view of dismmissed for default is it maintainable and not barred under limitation act?
Kiran Kumar
(Expert) 05 January 2009
well when the matter was dismissed without appreciating any evidence how can it be said to be decision on merits?
Guest
(Expert) 06 January 2009
Dear Mr. Satya,
You pl. go through the award passed by the labour court. If it is no dispute award, the workman should have moved an application to set aside the award before the labour court, within 30 days of passing of the award. If he did not do so, then also, he can directly approach the High Court under writ jurisdiction seeking a direction to the labour court to decide the matter on merits showing the reasons, which satisfy the court, why he did not lead the evidence in the first instance.
It appears, he did not follow the above said two methods and approached the labour commissioner, and hence, it is a wrong step. No dispute award is no award. Even then,the labour commissioner does not have the power to refer the matter again. After 30 days of passing of the award, only the High Court has the jurisdiction.
Now, you have to go to High Court challenging the action of the Labour Commissioner, if he initiates the conciliation proceedings or refer the matter again to Labour Court.
Prabhakar
karlprabhakar@gmail.com
9958670740
Hiralal Das
(Expert) 08 April 2009
Thanks all of you the ld. members and the author.
I think your valuable opinions will assist everybody to solve their problem/matter in question properly.
