All K.G. Khosla Karamchari Union (Regd.) vs State of Haryana

S.S. Sudhalkar, J.—By order dated 4.2.1999, respondent No. 1 passed order AnnexureP.5 whereby it referred the industrial dispute to the Industrial Tribu-nal-cum-Labour Court, Faridabad. Two issues have been referred. Out of them, the grievance is regarding the 1st issue. The issue is as under :-" 1. Whether the strike by the workmen of the factory from 2.7.1998 to 19.7.1998 is illegal andjustified or not ? If not to what relief the workers are entitled ?"

The grievances of the petitioners is that they were not on strike or even on a tool down strike in the way in which this allegation has been levelled by the management and it is to be decided whether there was a strike or not. Hence, the teamed Counsel for the petitioner has argued that there should be an issue as to whether (here was a strike (may be in the nature of tool down) or not. The learned Counsel for (he petitioners has cited the judgment in the case of Delhi Cloth and General Mills Company Ltd. v. Their Workmen and others, reported in I L.J 1967 (1) . 423, wherein it has been held by the Supreme Court that the Tribunal under reference u/s 10(1)(d) of the Act cannot widen the scope of the enquiry beyond the terms of reference, and the parties cannot be allowed to challenge the very basis of the issue, set forth in the order of reference. Regarding the words "in matters incidental thereto", the Supreme Court has observed as under :-"Something incidental to a "dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cu! at the root of the main thing to which it is an adjunct. In the light of the above, it would appear that issue (3) was framed on the basis that mere was a strike and there was a lock-out and it was for the industrial tribunal to examine the facts and circumstances leading to the strike and the lockout and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the management to deny the declaration of a lockout."

Mr. Mehta, learned Counsel for respondent No. 3 has vehemently objected the arguments of the learned Counsel for the petitioners. He has referred to the preliminary objections raised in the written statement filed in the writ petition. According to him, the petitioners are trying to overreach this court by filing number of writ petitions with little variations though the basis of all of them is the same. He has referred to C. W.P. No. 16029 of 1999, challenging the closure order passed by the State Government which according to him came into existence due to the strikes by these very workers as a sequence thereto. He has also referred to paragraph 7. of the writ petition in which there is quoted an order passed in CWP No. 3926 of 1999 passed on 26.10.1999. In view of this, the court ordered that "now the employer has been allowed to close down the industrial establishment, the writ petition has become infructuous and the same is accordingly disposed of." Learned counsel for respondent No. 3 further argued that tool down is also a strike and it is asserted in the written statement that there was a tool down strike. He has also drawn my attention to paragraph 11 (b) of the writ petition in which it has been stated that the management has never alleged that the workers were on strike from 2.7.1998 to 19.7.1998 and the strike is uncalled for.

The learned Counsel for the petitioners further argued that the factum and the effect of the strike itself being in dispute of whatever nature of it may be, the issue should have been framed. 5. The case of the respondent is that there was a tool down strike and that it is also a strike. Petitioner''s contention is that there was no strike at all. From letter Annexure P. 1 it can be seen that even the allegation of tool down strike is denied. The issue referred to above, if not clarified, will lead the Labour Court to take a decision in which the aspect of the fact of strike being there or not may not be considered. This can cause prejudice to the petitioner. Therefore, the reference should also have been made of the issue "whether the petitioners have resorted to strike". If this issue is decided in the negative, the other issue would become redundant.

As a result, the writ petition is allowed. The case is remanded to respondent No. 1 for considering the reference of issue of factum of strike also, which is also a disputed question.

Petition allowed.