Baroda Ispat Pvt Ltd and 1 vs State of Gujarat and 1

Honourable Mr. K.S. Jhaveri, J.—By way of these petition, the petitioner has challenged order of reference dated 3.5.2004 at Annexure-A which was subsequently amended by addendum dated 19.6.2004 by which names of the parties were added to the order dated 3.5.2004. By the said order, it was ordered that the employees are entitled for the backwages and other benefits from 15.3.2004 till the lock out is lifted by the petitioner. Learned Senior counsel for the petitioner Mr. K.M. Patel has pointed out that by referring the term of Reference, the State Government has restricted the defence which was raised even before the Government that (i) whether it was abandonment of work by the contractor/employees or (ii) whether it was strike and (iii) whether the respondents were contractor''s employees or there was no lock out; but in view of the term of reference, the three defences which are available and which are, of course, required to be proved by the petitioner are shut out by the limited term of reference and practically the petitioner is made defenceless.

1.1 The main defence that it was a strike by employees or abandonment by the contractor, has gone. Therefore, the learned counsel for the petitioner has contended that in view of the decision of the Hon''ble Supreme Court in the case of Delhi Cloth and General Mills Co. Ltd. Vs. The Workmen and Others, , more particularly, paragraph Nos. 16, 17 and 18 which are reproduced hereinafter, the Tribunal will not be in a position to consider the defences because it cannot travel beyond the term of reference.

para 16 - In the last mentioned case, the question whether C rank officers were workmen had to be examined by the tribunal, for, if they were not, there could be no reference under the Industrial Disputes Act. In the case before us, there is no such difficulty. The third and the fourth terms of reference in the instant case are founded on the basis that there was a strike at the Delhi Cloth Mills and a sit-down strike at the Swatantra Bharat Mills and that there was a lockout declared by the management of the Delhi Cloth Mills on 24th February, 1966. On the order of reference, it was not competent to the workmen to contend before the Tribunal that there was no strike at all; equally, it was not open to the management to argue that there was no lock-out declared by it. The parties would be allowed by their respective statement of cases to place before the Tribunal such facts and contentions as would explain their conduct or their stand, but they could not be allowed to argue that the order of reference was wrongly worded and that the very basis of the order of reference was open to challenge. The cases discussed go to show that it is open to the parties to show that the dispute referred was not an industrial dispute at all and it is certainly open to them to bring out before the Tribunal the ramifications of the dispute. But they cannot be allowed to challenge the very basis of the issue set forth in the order of reference.

Para 17 - On behalf of the respondents Mr. Chari put before us four propositions which according to him the Tribunal had to consider before coming to a decision on these two issues. They were: (i) The fact that there was a recital of dispute in the order of reference did not show that the Government had come to a decision on the dispute; (ii) The order of reference only limited the Tribunal''s jurisdiction in that it was not competent to go beyond the heads or points of dispute; (iii) Not every recital of fact mentioned in the order of Government was irrebuttable and (iv) In order to fix the ambit of the dispute it was necessary to refer to the pleadings of the parties. No exception can be taken to the first two points. The correctness of the third proposition would depend on the language of the recital.

Para 18 - So far as the fourth proposition is concerned, Mr. Chari argued that the Tribunal had to examine the pleadings of the parties to see whether there was a strike at all. In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the dispute was something else. Under S. 10(4) of the Act it is not competent to the Tribunal to entertain such a question.

Learned Sr. counsel for the petitioner submitted that, in similar set of facts, the same view is taken by the Hon''ble Supreme Court in the case of Moolchand Kharati Ram Hospital K. Union Vs. Labour Commissioner and Others, .

He further submitted that the Assistant Commissioner of Labour, Vadodara, has filed affidavit in reply and particularly pointed out to paragraph Nos. 5 and 8 which read as under:

para 5 - I say and submit that the workers of the petitioners - company went on strike on 1.3.2004. There were 61 workers who went on strike for the demand of advance against wages. On receipt of information about strike, Govt. Labour Officer and Assistant Commissioner of Labour, Vadodara, visited the factory on 4.3.2004. During the visit, on inquiry workers explained that they have not received the wages for the month of January 2004 and Feb. 2004. Parties were called for negotiations on 5.3.2004 before Asstt. Commissioner of Labour, Vadodara. During the meeting, it was finally agreed by the parties that workers will resume duty from 6.3.2004 and petitioners will pay advance against wages on behalf of contractor on pro rata basis. The remaining amount of wages will be paid by the contractor but if contractor fails to come to factory, petitioners will pay on behalf of contractor. As agreed by the parties, workers received the advance payment on 6.3.2004. Petitioners stopped the production for maintenance work from 1.3.2004 to 14.3.2004. So parties were called for negotiations in the office of Deputy Commissioner of Labour, Vadodara on 29.3.2004 and on 1.4.2004. In this meeting petitioner remained absent and looking to the position of 61 workers, it was decided to recommend the Govt. for prohibition of Lock out of the petitioners.

Para - 8 I say and submit that the reference for prohibition of Lock out has already been made by the Govt. and the matter has been referred to Industrial Tribunal, Vadodara. Therefore, this matter is subjudice. The petitioners may request the Industrial Tribunal for necessary amendments. Thus, it would be revealed that since no contractor was found working under the petitioner, question of joining contractor as a party to dispute does not arise.

Learned counsel for the petitioner submitted that in the affidavit in reply, the deponent has said that the petitioners may request the Industrial Tribunal for necessary amendments in the Reference without knowing the consequences.

Mr. Chaudhari, Union Representative, has argued the matter and pointed out that the defence of contractor is sham, bogus and the documents which are produced are absolutely got up. No documents are produced on record respect of compliance. Right from the year 2001, no action are taken by the State Government or by the petitioner. In that view of the matter, the Reference made by the State Government is just and proper and is within the scope of Section 10(3) and Sections 23 and 24 of the Industrial Disputes Act. He has relied on three decisions, namely, Delhi Administration, Delhi Vs. Workmen of Edward Keventers and Another, ; Modistone Limited Vs. Secretary (Labour) and Another, and AMERSY EXPORTS PVT. LTD. VS. STATE OF GUJARAT which is delivered on 26.6.2001 and submitted that the order passed by the State Government is just and proper.

I have heard learned Sr. Counsel Mr. Patel for the petitioner, learned AGP Ms. Shah for respondent No. 1 and Mr. Chaudhari, Union Representative, for respondent No. 2. Learned AGP has supported the case of the State Government.

While considering the matter, it will not be out of place to mention here that after considering two Supreme Court judgements, this Court, prima facie, has accepted the contention of the petitioner regarding the term of reference and the shut down their defence of strike, no lock out or taking the defence of contractor employees. In that view of the matter, when, by interim order, this Court has taken a view, it will not be appropriate for this Court to take a different view since no other reasons are shown by the State Government to take a different view.

Apart from that, the contention raised by the petitioner is required to be considered and which I am accepting that their defence of contractor employees, abandonment by contractor/employees and no lock out, will not be considered by the Tribunal. The issue of lock out is concluded by the term of Reference which is not permissible under law. In that view of the matter, both the References are required to be modified and the term of Reference is modified as under:

(a) The Industrial Tribunal will now decide the question whether the petitioner is the employer or the respondent Union''s members are workmen of the petitioner;

(b) The Industrial Tribunal will find out whether it was a lock out declared by the employer or it was a strike or abandonment by the contractor / employees.

The Court could have referred the matter back to State Government for modification of Reference but that would delay the proceedings. Therefore, it is modified by this Court. In that view of the matter, the petitions deserve to be allowed. The pending Reference will be proceeded on the modified terms of Reference and will be taken up on expeditious basis. The petitions are allowed. Rule is made absolute to the aforesaid extent.