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Judgment
Gita Mittal, J.—By this writ petition, the petitioner is seeking a writ setting aside the award dated 28th July, 2003 and order dated 7th May, 2004 in ID 7A/2001 passed by the Central Government Industrial Tribunal-cum-Labour Court, New Delhi. It appears that the petitioner was appointed as a work supervisor on daily wages as a casual ad hoc employee of M/s IRCON International Limited(respondent No. 2 herein). His services were regularised vide an order passed by the respondent on 24th March, 1986 when he was given regular pay scale of Rs. 424-700 with effect from 24th December, 1985 and his designation was changed from Works Supervisor to Junior foreman.
The petitioner thereafter served with the respondent No. 2 and his services were transferred from place to place till he was transferred to Delhi-Mathura Project of respondent No. 2. On 2nd June, 1998, respondent No. 2 is stated to have issued a notice terminating the services of the petitioner and some other employees.
This action of the respondents was impugned by the petitioner by way of Writ Petition No. 4061/98 entitled K.P. Singh v. Union of India wherein the petitioner sought the following prayers:
1) Quash the notice dated 2.6.1998 issued by respondent No. 2 IRCON International Limited (Annexure P-3) whereby the services of the petitioner is sought to be terminated being illegal, arbitrary, discriminatory and unwarranted.
2) direct respondent No. 2 IRCON International Limited to continue to treat the petitioner as its regular and permanent employee and continue to give him all the benefits as are admissible to him by virtue of his service.
3) Award cost of this petition; and also.
4) pass any other order or orders as this Hon''ble Court may deem fit and proper.
This writ petition was contested by the respondent No. 2 who filed a counter affidavit on 12th October, 1998. The material deposition on behalf of respondent No. 2 relevant for the purposes of the present case was as follows:
Without prejudice to the above submission it is further submitted that the petitioner was a Junior Engineer engaged on supervisory duties and was in receipt of salary of over Rs. 9,000/- per month and as such, he is not a workman in terms of Section 2(s) of the ID Act. The writ petition of the petitioner being based on the alleged violation of the ID Act is wholly misconceived and ill conceived. However, considering the petitioner has based his case in the petition on alleged violation of ID Act, the respondent is replying those allegations by assuming that the petitioner to be a workman under ID Act but without accepting the same. It may be added that compliance of the provisions of Section 25(F) of ID Act is by abundant caution, and that shall not deem that the petitioner is a workman. It is submitted whether a person is a workman or not u/s 2(2) of the ID Act is a mixed question of law and facts and, therefore, the same is to be decided on the basis of evidence and cross examination of witnesses in the appropriate forum so evolved under the ID Act.
The petitioner at that stage disputed these assertions on behalf of the respondent and asserted that his claim was legally maintainable. The writ petition filed by the petitioner alongwith the writ petition filed by other employees similarly situated was disposed of vide a detailed judgment dated 10th February, 2000 whereby this Court directed as follows:
On the facts and circumstances of the instant case before me, all facts are disputed and on the basis of the affidavits and the materials on record, no conclusion can be arrived at unless a complete picture about the projects, the nature of work done by the petitioners, and the circumstances under which the respondent/IRCON had issued the order, challenged in the writ petitions, is proved by evidence, oral and documentary. The court cannot adjudicate on these points raised by the petitioners and respondents. That exercise could be done only by an industrial court. In this view, I do not want to enter into any discussion on merits of the rival contentions of the parties. Granting the liberty to the petitioners in these writ petitions to raise industrial disputes, the writ petitions are dismissed.
This order was assailed by the petitioner in a petition before the Supreme Court of India vide an order passed on 8th November, 2000. The same was disposed of in the following terms:
Leave is granted limited to the question on which notice to show cause was issued by this Court on August 7, 2000.
Heard learned Counsel for the appellants and the Additional Solicitor General appearing for the respondents.
In regard to the notice issued to the respondents to show cause why similar order should not be passed (as passed in Special Leave Petition(C) No. 1573 of 1998) in this case also and why reference should not be directed to be made to the Industrial Tribunal u/s 10 of the Industrial Disputes Act, 1947, the learned Additional Solicitor General states that he has no objection to passing of an order in terms of the show cause notice. Accordingly we order that if the Central Government is approached by the appellants for making a reference to the Industrial Tribunal u/s 10 of the Industrial Disputes Act, the Central Government shall make the reference to the Tribunal within two months of making a written request for reference. On a reference being made. The Tribunal shall dispose of the same within six months. If possible, provided both the parties cooperate.
The appeals are disposed of accordingly.
Thereafter the petitioner appears to have approached the Assistant Labour Commissioner raising a dispute who sent the matter to the Government of India for making a reference vide an order dated 16th January, 2001. The Central Government vide an order bearing No. L41011/1/2001/IR (B-I) dated 16th January, 2001, referred the following industrial dispute to the Central Government Industrial Tribunal-cum-Labour Court for its adjudication:
Whether the action of the Joint General Manager, IRCON International Limited, Palika Bhawan, Sector-13, RK Puram, New Delhi-110 066 was within its right in terminating the services of Sri Gopal Singh and eleven other workmen on the respective dates as per details shown in the Annexure(I). And whether the concerned workmen could claim to be permanent employees of the IRCON International Ltd? If not to what benefits and relief the workmen are entitled to? Enclosure-Annexure-I.
This reference was registered as ID No. 7/2001. A joint statement of claim was made by the petitioner alongwith 11 other persons which was contested by the respondent No. 2 in its written statement. Copy of the statement of claim dated 20th March, 2001 has been placed on the record of this Court wherein the petitioner had signed as signatory No. 11.
It appears that the petitioner thereafter was not satisfied with the claim as laid and made an application dated 23rd April, 2002 seeking leave to file a separate statement of claim inter alia on the following averments:
That it is submitted that my case is quite different from other workmen to the proceedings. My case is in a different footing and which is to be considered differently than the other workmen mainly on two grounds.
(1) I am permanent and confirmed Junior Engineer of the IRCON and not a particular project employee or a tenure post. My appointment letter dated 19.5.1986 clearly shows that my appointment was permanent in nature and liable to transfer to project to project.
(2) I am not a workman as per Section 2(s) of the ID Act. I was a junior Engineer in the scale of pay Rs. 5000-8000, drawing a salary of Rs. 9,000/- per month, working in a supervisory capacity. The Management itself admitted the very fact in its counter affidavit in the writ proceeding.
x x x x x x x x x x x x x
Therefore it is one second prayer that this Hon''ble Tribunal may please permit the applicant/deponent to file separate statement claim in the light of the above submission and the case of the applicant/deponent be considered separately please.
In addition to this application the petitioner filed a further application on 15th January, 2003 in ID 7/2001 submitting as follows:
That the main statement of claim in this case already filed by Shri O.P. Khadaria, Advocate in respect of Gopal Singh and eleven others including the applicant/deponent, on 23.3.2001, without any authorisation or consent of the applicant/deponent and for the reason there is nothing mentioned in respect of applicant/deponent as Junior Engineer.
That as already stated in the main application filed by the applicant/deponent that he was working in a supervisory capacity, drawing a salary of Rs. 9,000/- per month therefore was not covered under the definition of workman as provided in Section 2(s) of ID Act. This fact was also admitted and submitted in counter affidavit by the respondent/management before the Hon''ble High Court of Delhi in CWP No. 4061 of 1998. Copy of which is enclosed herewith for kind consideration of this Hon''ble Tribunal. Due to, improper representation by the Advocate for the applicant deponent before Hon''ble Supreme Court, the Hon''ble Court in wrong impression ordered to approach Central Government alongwith other employees.
That except the applicant/deponent, and Shri Dhal Singh, all other ten persons are workman as defined in the Industrial Dispute Act, and therefore the statement of claim to be filed separately is very much necessary in the interest of justice and early disposal of the case of the applicant/deponent. The disposal of the case can take a long time and if permission to file separate statement or consideration of the case of the applicant/deponent in the separate manner is not made than it will make a irreparable loss to the applicant/deponent.
This application was considered by the Industrial Tribunal which passed an order allowing the application and separating the case of the petitioner which was treated as ID No. 7A/2001 dated 28th July, 2003 based thereon:
After filing statement of claim by workman written statement by the management, on the basis of the objection of the Management Shri KP Singh one of the workman of ID No. 7/2001 moved an application on 23.4.2002 to withdraw his claim from this Court on the ground that his case is different from the case of other workmen. The application of Shri KP Singh was allowed and accordingly his case has been separated and has been permitted to withdraw his case.
Since the workman Shri KP Singh has withdrawn his claim and A/R of the management did not raise any objection to it the reference so far as it relates to Shri KP Singh is answered as the claim of workman KP Singh has been withdrawn.
Accordingly No Dispute Award is passed in respect of the claim of Shri KP Singh.
Aggrieved by the order passed on his application and no dispute award passed by the Industrial Tribunal, the petitioner made an application on 29th September, 2003 seeking recall of the award on the plea that the petitioner had moved applications praying leave to file separate statement of claim as the applicant is not a workman but a junior engineer and that he never intended to withdraw the case. According to the petitioner he had never made a prayer seeking leave to withdraw his case.
This application was contested by the respondent No. 2 before the Industrial Tribunal. By a detailed order dated 7th May, 2004, the application was rejected.
The petitioner has filed the present writ petition impugning the award dated 28th July, 2003 and the order dated 7th May, 2004 before this Court in the present writ petition. The principle ground for challenge by the petitioner before this Court is that the petitioner had never made any prayer seeking withdrawal of his case before the Industrial Tribunal. His application had contained a simple prayer seeking leave to make a separate claim as the petitioner was of the view that his case was different and that the award dated 28th July, 2003 and the order dated 7th May, 2004 are without jurisdiction inasmuch as the Tribunal had no authority whatsoever to make an order which had not been sought on the petitioner''s application.
I find that the petitioner had raised a specific challenge to his termination based on the plea that he was workman covered by the Industrial Disputes Act in WP(C) 4061/98. In the counter affidavit which had been filed in WP 4061/98, an objection in this behalf had been specifically urged by the respondent who had submitted that the petitioner was not a workman and not covered under its definition in Section 2(s) of the Industrial Disputes Act, 1947. Yet the petitioner maintained his claim resulting in the judgment dated 10th February, 2000.
This issue was however not decided for the reasons recorded in the judgment dated 10th February, 2000 which has been reproduced herein above. It was held by the court that in view of the objections raised, disputed questions of fact arose and that no conclusions could be arrived at on the basis of the affidavits and the material on recorder Consequently the Court did not enter into merits of the rival contentions of the parties and dismissed the writ petitions giving liberty to the petitioners to raise industrial dispute.
The petitioner assailed this judgment on the same pleas before the Apex Court. It appears that an order had been passed in SLP(C) No. 1573/98 directing a reference to be made to the industrial tribunal u/s 10 of the Industrial Disputes Act, 1947. Based on this order a similar direction was made in respect of the other petitions.
The Central Government thereafter has even made the reference on 16th January, 2001 for adjudication of the disputes raised by the petitioner and other persons for adjudication by the Central Government Industrial Tribunal.
The petitioner filed a claim alongwith the other persons duly signed by him to which the respondent filed its written statement. Only thereafter, the petitioner filed the application dated 23rd April, 2002 contending that he was not a workman as per Section 2(s) of the Industrial Disputes Act on the ground that he was a junior engineer in the scale of pay of Rs. 5,000 - 8,000 drawing a salary of Rs. 9,000/- per month working in a supervisory capacity. The first admission to this effect was made in an application dated 23rd April, 2002. This was repeated in his application made on 15th January, 2003.
In his application dated 15th January, 2003 the petitioner also asserted that the statement of claim was filed by his advocate "without any authorisation or consent". So far as the proceedings before the Apex Court are concerned, the petitioner contended that "due to improper representation" by his advocate, the Supreme Court "in wrong impression ordered to approach Central Government alongwith other employees". The petitioner however contended that except the applicant(himself) and one Shri Dhal Singh, the other ten persons in whose behalf also the reference stood made by the Government were covered under the definition of workman ''as defined under the Industrial Disputes Act.
I find that in the 2nd application made by him the petitioner placed reliance on the objection taken by the respondent No. 2 before this Court in WP 4061/98 to the effect that the petitioner was not a workman who was covered u/s 2(s) in the definition of workman of the Industrial Disputes Act 1947. The petitioner had even placed copy of the counter affidavit of the respondent No. 2 before the industrial tribunal.
Undoubtedly a prayer was made by the petitioner to permit the petitioner to file a separate statement of claim in the light of these statements.
The question which arises for consideration before this Court is as to whether the prayer made by the petitioner in his applications could have been granted in law. There is no dispute that there was no adjudication by either this Court in the earlier litigation or by the Apex Court on the claims of the respective parties. The petitioner in his writ petition had sought reliefs based on the violations of the provisions of the Industrial Disputes Act, 1947 which applies only to workmen. There was no adjudication of such pleas/claims. The Apex Court also was not called upon to adjudicate upon the availability or maintainability of the remedy under the Industrial Disputes Act, 1947 of the petitioner.
Despite objection by the respondent No. 2 that the petitioner was not a workman and challenge to maintainability of the pleas taken by the petitioner, the petitioner did not seek the severance of his case from the other persons whose cases were being heard alongwith his case before this Court or the Apex Court and permitted the orders dated 8th November, 2000 to be passed even in respect of his case. He accepted the orders, sought adjudication under the Industrial Disputes Act, 1947 and even signed and filed a claim before the Industrial Adjudicator.
In my view the plea which the petitioner raised in the proceedings arising out of the reference before the industrial adjudicator ought to have been taken earlier either before this Court or before the Apex Court. The petitioner was required to have pointed out that his case was not the same as that of the other persons that he was not a workman and sought severance of his case. Having specifically based prayers on the premise that he was a workman covered under the Industrial Disputes Act, 1947 and having filed a claim before the Industrial Tribunal, the petitioner cannot be permitted to contend that he was improperly represented.
In realization of his error the petitioner made the application dated 23rd April, 2002 to the effect that he was not covered under the definition of workman given in Section 2(s) of the Industrial Disputes Act.
There can be no dispute that the Industrial Disputes Act 1947 is applicable strictly to matters of disputes between workmen as defined u/s 2(s) and the industrial establishments where they are employed. The disputes raised by the petitioner, therefore, could not have been agitated by raising a claim for adjudication under the Industrial Disputes Act 1947 inasmuch as the petitioner was not a workman.
An employee who is not a workman, has no legal right to approach the Conciliation Officer or any Labour Court or Industrial Tribunal for redressal of his grievances. Appropriate remedy for redressal of his grievances lies either before the Civil Court or before the High Court having jurisdiction over the matter. Faced with the admission by the petitioner, the proceedings at the instance of the petitioner who was not a workman before the industrial adjudicator were without authority of law and could not have been sustained. For this reason, the Industrial Tribunal had no jurisdiction under the Industrial Disputes Act, 1947 to permit him to file a separate statement of claim or a "separate" statement claim. Such prayer in the petitioner''s application could not have been legally granted.
Perusal of the impugned award dated 28th July, 2003 shows that the petitioner made an application dated 23rd April, 2002 to withdraw his claim before the Tribunal on the ground that his case was different. This application was allowed and his case was separated (treated as ID 7A/2001) and he was permitted to withdraw the same. As the petitioner is stated to have withdrawn his claim, accordingly, no objection was required thereto from the side of the management and the claim was answered as having been withdrawn. As a result the adjudicator has returned a "no dispute" award in respect of the claims made by the petitioner.
I further find that this award dated 28th July, 2003 has been published by the appropriate Government on 7th August, 2003 under the provisions of Section 17 of the Industrial Disputes Act 1947. The petitioner has filed the application seeking recall of the Award only thereafter on 29th September, 2003. This application was contested by the respondent and rejected by the order dated 7th of May, 2004.
The order dated 7th May, 2004 records that the petitioner had filed a handwritten application for withdrawal of the claim apart from the petitioner''s contention that he was not a workman. I find that the order dated 7th May, 2004 notices that such application was not traceable in the file. However, in view of the admission of the petitioner that he was not a workman within the purview of Section 2(s) of the Industrial Disputes Act, 1947, the result on the application of the petitioner cannot change. No other issue has been pressed before me.
I have noticed hereinabove that the petitioner raised no issue before this Court or the Apex Court and did not object to the directions in reference of the claim made by him to the Industrial Tribunal. It was only before the Industrial Tribunal he started agitating the issue that he was not covered under the definition of workman u/s 2(s) of the enactment. The respondent has itself asserted such position. It is thus manifest that having repeatedly asserted that he was not a workman, no dispute remained on this issue and the industrial tribunal had no option but to so return the reference.
It is trite that a tribunal or court constituted by statute derives jurisdiction strictly from the legislation which creates it. Such jurisdiction cannot be conferred on the tribunal or court by any other court or even by the consent of the parties. But for the obdurate posture adopted by the petitioner in the earlier writ petition and the Apex Court, despite specific objection by the respondents, such a piquant situation would not have arisen. The orders were passed by this Court on 10th February, 2000 on such stand of the petitioner.
In view of the volte face by the petitioner before the Industrial Adjudicator to the effect that he is not covered under the Industrial Disputes Act, 1947, he cannot possibly contend that he is entitled to maintain a claim before the Industrial Tribunal by virtue of the judgment dated 10th February, 2000 passed by this Court of the order dated 8th November, 2000 of the Apex Court.
The industrial tribunal is a creation of the Industrial Disputes Act, 1947 with no power to adjudicate on any issue or claim not relating to a workman.
The Industrial Adjudicator has not answered the reference on its relative merits. A preliminary submission was raised by the petitioner ousting the jurisdiction of the tribunal. The order made by the tribunal did not decide or impose any obligation upon the parties. The petitioner is at liberty to seek adjudication of his pleas and claims by any appropriate remedy, if available as per law. Needless to say, the respondent shall have the right to contest the maintainability and merits of the same on all legally tenable grounds available on the facts of the present case and in law and also the effect of the pleas taken by the petitioner and the impact of the orders passed in the earlier litigation.
In these circumstances the Award dated 28th July, 2003 and order dated 7th May, 2004 cannot be challenged on any legally sustainable grounds and the challenge thereto is rejected and the writ petition is dismissed.