- 1 - WA No. 1357 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MS. JUSTICE TARA VITASTA GANJU WRIT APPEAL NO. 1357 OF 2025 (L-RES) BETWEEN: 1. FOURESS ENGINEERING KARMIKA SANGHA NO.25 BYRAPPA LAYOUT NAGARASHETTIHALLI BENGALURU 560094 REPRESENTED BY ITS GENERAL SECRETARY …APPELLANT (BY SRI. K S SUBRAHMANYA., ADVOCATE) AND: 1. MANAGEMENT OF FOURESS ENGG (1) PVT., LTD., PLOT NO.2, PHASE II, PEENYA INDUSTRIAL AREA BENGALURU 560058 REPRESENTED BY ITS GENERAL MANAGER HR …RESPONDENT (BY SRI. SOMASHEKAR., ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR RECORDS IN WP No-31178/2019 AND GRANT THE APPELLANT THE FOLLOWING RELIEFS, SET ASIDE THE ORDER OF THE LEARNED SINGLE JUDGE DATED 08.07.2025 IN WP No- 31178/2019 HOLDING THAT THE FAIRNESS OF DOMESTIC ENQUIRY BY THE LABOUR COURT WOULD BE RES JUDICATA AND CONSEQUENTLY ALLOW THE WP, ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.11.2025, COMING ON FOR ® Digitally signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA - 2 - WA No. 1357 of 2025 PRONOUNCEMENT THIS DAY, HON'BLE MR. JUSTICE D K SINGH., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MS. JUSTICE TARA VITASTA GANJU CAV JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) The present intra Court appeal has been filed against the judgment and order of the learned Single Judge dated 08.07.2025 in W.P.No.31178/2019 whereby the writ petition filed by the appellant has been dismissed. 2. The parties are referred to as per their ranking in the writ petition for the sake of convenience. 3. The Petitioner-Union challenged the order of First Additional Labour Court, Bengaluru dated 06.05.2019 in Reference No.22/2011 while filing W.P.No.31178/2019. The Labour Court had held that the issue of fairness of domestic enquiry would not be again looked into in view of the detailed finding of the Industrial Tribunal in the proceedings between the parties under Section 33 (2) (b) of the Industrial Tribunal Act, 1947 (hereinafter referred to as 'the ID Act'). The said - 3 - WA No. 1357 of 2025 issue would be barred by principle of res judicata. The learned Single Judge has conferred the view taken by the Labour Court. 4. The facts relevant for the purpose of deciding this appeal are that the respondent - Management had dismissed three workmen on 01.10.2002, 05.06.2002 and 13.10.2000. As the industrial dispute regarding the charter of demands was pending, the respondent - Management filed the applications under Section 33(2) (b) of the Industrial Dispute Act before the Industrial Tribunal seeking approval of the dismissal of the three workmen as a result of the domestic enquiries. 5. The respondent - Management had dismissed three workmen viz., K. Muniyappa, K. Chandrasekharan and G.Krishnamurthy vide the dismissal orders dated 01.10.2002, 05.06.2002 and 13.10.2000 respectively. The respondent had filed application in S.A.Nos.30/2002, 27/2002 and 67/2002 under Section 33(2)(b) of the ID Act seeking approval of the orders of dismissal against K. Muniyappa, K. Chandrasekharan and J.Krishnamurthy respectively in ID No.67/2000 pending before the Industrial Tribunal, Bengaluru on charter of demands of the workmen for improvement in wages and other service - 4 - WA No. 1357 of 2025 conditions. The Industrial Tribunal had approved orders of punishment against the three workmen. 6. The Petitioner-Union raised an industrial dispute regarding the dismissal of the three workmen and once the conciliation proceedings ended in failure, the industrial dispute was referred to the First Additional Labour Court under Section 10(1)(c) of the ID Act for adjudication of the industrial dispute as to whether the dismissal of the three workmen were justified or not and to what relief they were entitled to. 7. On receipt of the reference, the First Additional Labour Court registered the dispute as Reference No.22/2011. On appearance of the parties and completion of the pleadings, the Labour Court framed an additional issue as follows: "Whether the domestic inquiry conducted by the second party against the first party is fair and proper?" 8. The Labour Court held that the domestic enquiry conducted against the three workmen was subject to judicial scrutiny before the industrial Tribunal in three serial applications mentioned above filed in ID No. 67/2000. - 5 - WA No. 1357 of 2025 9. It was held that while considering the three serial applications to grant approval of inflicting the punishment of dismissal against the three workmen, the parties led evidence i.e., documentary and oral. All the three workmen were cross examined and after elaborate discussion on the fairness of the domestic enquiry, the approval was granted relying on the judgment in the case of Chairman and Managing Director, The Fertilisers and Chemicals Travancore Ltd., and Others v. General Secretary FACT Employees Association and others (AIR 2019 SC 1870) holding that the principle of res judicata would apply to the labour/Industrial proceedings as fairness of the domestic enquiry issue had already been decided by the Industrial Tribunal in three serial applications mentioned above between the same parties, the question of deciding once again the additional issue No.1 regarding domestic enquiry being just, fair and proper would not arise and same would be barred by the principle of res judicata and thus, the reference was answered in negative. 10. As mentioned above, the learned Single Judge has upheld the findings on this issue of the Industrial Tribunal. The Single Judge has framed the following issue in the impugned judgment for answer. - 6 - WA No. 1357 of 2025 "Whether the finding recorded by the Authority in a proceeding under Section 33(2)(b) of the Industrial Disputes Act, 1947 on the issue "Whether the domestic enquiry was fair and proper", operates as res judicata, in the subsequent proceedings before the Labour Court, challenging the penalty of dismissal?" 11. The learned Single Judge held that the finding recorded under Section 33(2)(b) of the ID Act holding that the domestic enquiry is fair and proper that too after recording evidence cannot be re-agitated in a subsequent Industrial dispute challenging the order of dismissal. While dealing with an application under Section 33(2)(b) of the ID Act, if the Industrial Tribunal/Labour Court records a finding and holds that the enquiry was not fair and proper, and thereafter, permits the parties to lead evidence afresh on the charges leveled, then in such situation the defect in enquiry gets cured. In such an event, in a subsequent proceeding under Section 10 of the ID Act, there cannot be any further enquiry relating to the fairness of the disciplinary enquiry. 12. It has been that the finding recorded in proceedings under Section 33(2) (b) of the ID Act as to whether the domestic inquiry was fair and proper, after recording the evidence is binding on the parties to the proceeding as the - 7 - WA No. 1357 of 2025 authority has the jurisdiction to adjudicate on the fairness of the domestic enquiry and the said finding cannot be re-agitated in a subsequent industrial dispute assailing the order of penalty as the same would operate as res judicata between the parties. However, the authority under Section 33(2)(b) of the ID Act cannot adjudicate on the merits of the findings in the domestic enquiry or on quantum of the penalty, as it does not have the jurisdiction to adjudicate on the merits of the findings in the domestic enquiry. Those questions have to be adjudicated in a subsequent industrial dispute, if raised. 13. The learned counsel for the appellants/petitioners has submitted that powers under Section 33(2) (b) and Section 10 of the ID Act are distinct. The exercise of powers under Section 33(2)(b) would not act as res judicata in subsequent proceedings under Section 10 of the ID Act. The proceedings under Section 33(2)(b) are limited to forming a prima facie view as to whether approval or dismissal of workmen can be granted for lifting the ban imposed by Section 33 of the ID Act. The submission is that the order passed under Section 33(2)(b) of the ID Act would not be binding or act as res judicata in proceedings under Section 10. The proceedings under Section 33(2) (b) are not adjudicatory in nature but involve only a - 8 - WA No. 1357 of 2025 prima facie summary enquiry to lift the ban imposed. It is further submitted that the approval granted under Section 33(2)(b) is without prejudice to the rights of the workmen to raise an industrial dispute under Section 10 of the ID Act. In the Industrial Dispute, the Labour Court must conduct a full- fledged adjudication under Section 10 of the ID Act scrutinizing all relevant circumstances including the fairness of the domestic enquiry afresh. 14. It is further submitted that the purpose of Section 33 of the Act is merely to give or withhold permission and not to adjudicate upon the industrial dispute. Therefore, any findings recorded in the proceedings under Section 33 would not operate as a res judicata in a subsequent industrial dispute raised under Section 10 of the ID Act. An approval granted under Section 33(2)(b) has no binding effect in the proceedings under Sections 10(1)(c) and (d) which should be decided independently while weighing the material adduced by the parties before the Labour Court/Industrial Tribunal. 15. Learned counsel for the appellants/petitioners has placed reliance on the following judgments in support of her submissions. - 9 - WA No. 1357 of 2025 i. Automobile Products of India Ltd. Vs. Rukmaji Bala reported in (1955) 1 SCC 92. ii. G.McKenzie and Co. Ltd. Vs. Workmen and others reported in (AIR 1959 SC 389). iii. John D'Souza Vs. Karnataka State Road Transport Corporation (2019) 18 SCC 47. 16. On the other hand learned counsel for the respondent-management has submitted that in serial applications filed by the management seeking approval under Section 33(2)(b) of the ID Act, the issue of fairness of domestic enquiry was tried as a preliminary issue by the Industrial Tribunal. The management had examined the Enquiry Officer as AW-1 and adduced the documentary evidence, Exs.A1 to A9. P. Krishnamurthy-workman examined himself as OW-1 and adduced evidence marked Exs.01 to 35. The Industrial Tribunal vide order dated 14.09.2005 upheld the domestic enquiry as fair and proper. The workmen never challenged this order regarding the enquiry being just, fair and proper, and the said order had attained finality. After deciding the preliminary issue of domestic enquiry, on merits, the Industrial Tribunal allowed the application filed under Section 33(2)(b) vide order dated 11.08.2008 and approved the dismissal orders of three workmen. The order dated 11.08.2008 was also not challenged - 10 - WA No. 1357 of 2025 by the three workmen which attained finality. Similarly, in case of Muniyappa and Chandasekharan the same preliminary issue was framed regarding the domestic enquiries and after examining the oral and documentary evidence, the domestic enquiries were found to be fair and proper vide order dated 29.03.2008 and 09.08.2006 respectively in case of Muniyappa and Chandrasekharan, and thereafter on merits, the punishment of dismissal from service was approved by the Industrial Tribunal vide orders dated 14.10.2008. These orders were also not challenged by the other two workers. 17. The Petitioner-Union raised the industrial dispute under Section 10(1)(c) of the ID Act challenging the dismissal of these three workmen in the year 2011 i.e, after lapse of 9 years. The dispute came to be referred to the First Additional Labour Court, Bengaluru for adjudication in Reference No. 22/2011. The Labour Court framed additional Issue No.1 on the validity of three domestic enquiries held against the three workmen named above. As the management raised the issue of principle of res judicata regarding the validity of domestic enquiry, the Labour Court, framed the additional Issue No.1 on the validity of the domestic enquiry and vide order dated 06.05.2019 held that the issue regarding validity of all three - 11 - WA No. 1357 of 2025 enquiries would operate as res judicata as the same had already been decided by the Industrial Tribunal on the basis of the evidence led by the parties and posted the case for evidence of the parties to hear on proportionality of punishment under Section 11(A) of the ID Act. 18. Against the decision of the Labour Court on the additional Issue No.1 the petitioner had filed the writ petition in W.P.No.31178/2019 challenging the order dated 06.05.2019 and the learned Single Judge by the order dated 08.07.2025 has upheld the order passed by the First Additional Labour Court. 19. The learned counsel for the respondent would submit that since all the three domestic enquiries were held to be fair and proper by the Industrial Tribunal in proceedings under Section 33(2)(b) of the ID Act after recording evidence of the Enquiry Officers and workmen and examining the documentary evidence, the same would operate as res judicata. It has been further submitted that in view of the provisions of Section 33(2), if the enquiry is set aside and management leads evidence on the merits of the charges and approval is granted, then a fresh reference under Section 10 of the ID Act - 12 - WA No. 1357 of 2025 would not be permissible. He has placed reliance in support of his submission in Rajasthan State Road Transport Corporation Vs. Bharat Singh Jhala 2022 SCC Online SC 1335. He therefore, prays for dismissal of the appeal. 20. We have considered the submissions of the learned counsel for the parties. 21. It would be apt to take note of Section 33(2) b) of the Industrial Disputes Act. "33. Conditions of service, etc., to remain unchanged under certain circumstances during the pendency of proceedings- (1) xxx (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,- (a) xxxx (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer." - 13 - WA No. 1357 of 2025 22. Before imposing punishment, the employer is required to hold fair and proper domestic enquiry. The Industrial Tribunal/Labour Court is required to satisfy itself that the further requirements of Section 33(2)(b) of the ID Act are satisfied before granting approval of the order of punishment of dismissal from service. The first question which requires consideration by the Industrial Tribunal/Labour Court would be whether the domestic enquiry is fair and proper. When the preliminary issue regarding proper and fairness of the domestic enquiry was framed and the parties led their evidence on this issue, the findings recorded would operate as res judicata. In the case of G. McKenzie and Co. Ltd (supra) it was held that prima facie findings that the domestic enquiry was fair and proper would not operate as res judicata in subsequent litigation under Section 10 challenging dismissal. But when the issue has not been decided prima facie but comprehensively after parties lead evidence, the findings of the Tribunal would operate as res judicata in subsequent proceedings. 23. Section 33 proceedings are only in respect of grant or withholding of permission on a prima facie basis and would not finally adjudicate the industrial dispute and therefore, the - 14 - WA No. 1357 of 2025 Industrial Tribunal/Labour Court must decide Section 10 independently. It was also held that the findings recorded under Section 33 of the ID Act regarding proper and fair enquiry would be entitled to weigh and should not be ignored without reasons. 24. The facts of the present case are different than the facts in the case of G. McKenzie and Co. Ltd (supra). In the present case, the issue framed was regarding proper and fair domestic enquiry. The Industrial Tribunal did not record a prima facie finding, but it examined the evidence thoroughly led by the parties on the said issue, and thereafter, recorded the findings that the enquiry was just, fair and proper. If it was a prima facie finding without the parties having led the oral and documentary evidence, the same would not have operated as res judicata. But as stated above, here it was not a prima facie finding but a detailed enquiry was conducted on fair and proper domestic enquiry, and therefore, the observations in the case of G. McKenzie and Co. Ltd (supra) are not applicable. Further it is nowhere said that the Industrial Tribunal does not have power under Section 33(2)(b) of the ID Act to adjudicate on the question whether the domestic enquiry was fair and proper. - 15 - WA No. 1357 of 2025 25. In Punjab National Bank Ltd. Vs. All India Punjab National Bank Employees Federation (AIR 1960 SC 160), it has been held that the jurisdiction of the Tribunal in dealing with an application under Section 33 seeking approval of punishment of dismissal from service was limited. It had been held that the Tribunal is required to consider whether the employer had held a proper enquiry into the alleged misconduct of the employee and the proposed dismissal of the employee was not to victimise the employee or an unfair labour practice. However, the Tribunal would not have the jurisdiction to go into the merits whether the order proposed to be passed by the employer is proper or adequate or it would suffer from excessive severity. 26. In the case of Bharat Singh Jhala (supra) it has been held that once the order of termination was approved by the Industrial Tribunal and the management was permitted to lead evidence and prove the misconduct before the Industrial Tribunal/Labour Court and on the basis of the evidence led by the parties, order of termination was approved, fresh reference under Section 10 of the ID Act, challenging the order of - 16 - WA No. 1357 of 2025 termination would not be permissible. Paragraph 13, 14 to 16 of the said judgment are extracted herein. "13. At the outset, it is required to be noted that the workman was subjected to departmental enquiry and the charge against the deceased workman was not issuing the tickets to 10 passengers though he collected the fare. On conclusion of the departmental enquiry his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the I.D. Act. In the said proceedings the management was permitted to lead the evidence and prove the charge/misconduct before the Tribunal. In the said application the parties led the evidence, both, oral as well as documentary. Thereafter on appreciation of evidence on record, the Industrial Tribunal by order dated 21.07.2015 approved the order of termination. That thereafter the workman raised the Industrial Dispute challenging the order of termination which as such was proved by the Industrial Tribunal by order dated 21.07.2015. Therefore, once the order of termination was approved by the Industrial Tribunal and the management was permitted to lead the evidence and prove the misconduct before the Court and thereafter on appreciation of evidence the order of termination was approved, thereafter the fresh reference under Section 10 of the I.D. Act challenging the order of termination was not permissible. It is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the Labour Court had attained the finality. Though the aforesaid fact was pointed out before the High Court, the High Court has not at all considered - 17 - WA No. 1357 of 2025 and/or appreciated the same and has confirmed the judgment and award passed by the Labour Court for setting aside the order of termination which as such was approved by the Industrial Tribunal. 14. Now so far as the reliance placed upon the decision of this Court in the case of John D'Souza (supra) by the learned counsel appearing on behalf of the respondent is concerned, on facts the said decision shall not be applicable to the facts of the case on hand. In the present case by specific order the Industrial Tribunal permitted the management to lead the evidence and prove the misconduct before the Court which as such was permissible. That thereafter the Industrial Tribunal approved the order of termination. Once the order of termination was approved by the Industrial Tribunal on appreciation of evidence led before it, thereafter the findings recorded by the Industrial Tribunal were binding between the parties. No contrary view could have been taken by the Labour Court contrary to the findings recorded by the Industrial Tribunal. 15. In view of the above, the judgment and award passed by the Labour Court confirmed by the High Court is unsustainable. The High Court has committed a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination. 16. In view of the above and for the reason stated above the present appeal succeeds. The impugned judgment and order passed by the High Court confirming the judgment and award passed by the Labour Court setting aside the order of termination and the judgment - 18 - WA No. 1357 of 2025 and award passed by the Labour Court setting aside the order of termination are hereby quashed and set aside." 27. In the present case, the issue of fair and proper enquiry was decided as preliminary issue in proceedings under Section 33(2)(b) of the ID Act. The parties led oral and documentary evidence in support of their submissions and after conducting a detailed enquiry, the Industrial Tribunal found that the domestic enquiry was fair and proper, and thereafter granted approval. As it was not a prima facie finding recorded by the Industrial Tribunal but on detailed enquiry and on the basis of the evidence, therefore, we are of the view that the said finding would operate as res judicata in the subsequent challenge to the order of dismissal under Section 10(1)(c) of the ID Act. 28. We do not find any ground to interfere with the impugned judgment and order passed by the learned Single Judge. 29. The Labour Court has reserved liberty to the parties to lead evidence on proportionality of punishment under Section 11 (a) of the ID Act. As directed by the learned Single - 19 - WA No. 1357 of 2025 Judge, the Labour Court should proceed with the matter to adjudicate on the merits of the penalty imposed. With the aforesaid, we dismiss the appeal. Sd/- (D K SINGH) JUDGE Sd/- (TARA VITASTA GANJU) JUDGE RKA