State of Rajasthan vs Darshan Ram and Others

Jaishree Thakur, J.—The present writ petition has been filed under Articles 226 and 227 of the Constitution of India challenging the award of the Labour Court dated 12.6.2001.

Brief facts of the case are that respondent No. 1 raised an industrial dispute and the same was referred by the Appropriate Government to the Labour Court. By exercising powers under Section 19(1) of the Industrial Disputes Act, 1947 (for short ''the Act of 1947''), the State Government referred the following question for decision:-

"Whether the termination of Shri Darshan Ram s/o. Shri Mansha Ram, Daily Wager, Peon by the employer Assistant Engineer, Irrigation Department, Sub-Division Shri Karanpur, District Sriganganagar was legal and valid? If not, then what relief, the workman is entitled to?" (Translated version)

The respondent No. 1 filed it claim petition before the Labour Court alleging that he had been appointed on 6.6.1986 as a Class IV Employee and had worked upto 1.12.1988, thereby completed two years and six months of service. His services were terminated in violation of procedure laid down under Section 25F, 25G and 25H of the Act of 1947 and, therefore, he claimed reinstatement in service with full back wages. The petitioner herein filed reply to the claim petition denying all the allegations raised in the claim petition. After hearing the matter, the Labour Court passed an award on 12.6.2001 and ordered that the retrenchment of the respondent was in violation of the provisions of the Act of 1947 and thereby would be entitled to continuity of service with 30% back wages. The award was to be executed within a period of three months failing which the workman would be entitled for 12% interest. Aggrieved against the said award, the present writ petition has been filed.

The counsel appearing for the petitioner has argued that the impugned award is unsustainable because the same is beyond the reference made by the Appropriate Government. It is argued that the reference which was made for adjudication was only to decide whether the retrenchment of service of respondent No. 1 is just and proper and if not, to what extent of relief, he would be entitled to? It is argued that the learned Labour Court has suo moto concluded the date of retrenchment to be from 1.12.1988 and in these circumstances, when there is no mention of the date of retrenchment in the reference order, the Labour Court has exceeded its jurisdiction in holding the date of retrenchment to be 1.12.1988. It is further argued that the findings of the Labour Court are erroneous to the extent that there was no occasion to arrive at the conclusion that there was a violation of Section 25F of the Act of 1947.

I have heard the learned counsel for the parties and have perused the record of the case it would be relevant to record that the respondent has not filed reply to the writ petition.

A perusal of the reference order shows that the Appropriate Government had referred the matter to the Labour Court exercising powers under Sections 10(1) of the Act of 1947. The question framed for decision by posing the question to be decided was as to whether the termination of the petitioner-workman was legal and valid. A perusal of the award shows that the Labour Court, after going through the claim petition and the reply, framed a question of its own as to whether or not the workman had completed a period of 240 days of service. Thereafter the Labour Court came to the conclusion that the respondent-workman had completed a period of 240 days and upheld the claim petition. The Labour Court relied upon the muster-roll produced along with the claim petition to reach that conclusion.

Primarily, the thrust of the argument of learned counsel for the petitioner is that the Labour Court has exceeded its jurisdiction while deciding the reference which was limited to the extent of deciding whether the termination of the workman was legal and valid, whereas the Labour Court framed an issue whether the claimant had completed 240 days or not?

Learned counsel appearing for the petitioner has relied upon the judgment of this Court reported as Suresh Chandra v. General Manager, Raj. State Bridge and Construction Corporation, 2002 (3) WLC (Raj.) 67 to contend that the Labour Court cannot travel beyond the terms of the reference and as such, the award is a nullity for want of jurisdiction. In Suresh Chandra''s case (supra), the Appropriate Government had referred a dispute to the Labour Court to decide the question whether the termination of the services of the workman with effect from 1.3.1989 was justified. According to the workman, his services were terminated with effect from 1.3.1987, with the result, the Labour Court instead of deciding whether the termination of services of the workman with effect from 1.3.1989 was justified, decided the reference taking the date of termination as to be with effect from 1.3.1987. A co-ordinate Bench of this High Court came to the conclusion that the Labour Court lacks competence to correct/modify/amend/alter the terms of the reference or correct the name or the date of termination etc. and in case it is done, the award become a nullity, being without jurisdiction. It was held in this case as under:-

"15. Thus, in view of the above, I reach the inescapable conclusion that the Labour Court lacks competence to correct/modify/amend/alter the terms of the reference or correct the name or the date of termination etc. and in case it does so, the award becomes nullity, being without jurisdiction, based on the reference.

Thus, the impugned award dated 25.4.2000 is declared to be a nullity, unenforceable and in executable and is hereby set aside. The workman may approach the Appropriate Government for demanding the reference. As the matter is very old, if the workman makes such an application, the Appropriate Government is requested to pass appropriate order on his application expeditiously and in case the reference is made, the Labour Court is requested to dispose of the claim petition expeditiously. There shall be no orders as to costs."

Further more, in Mahendra L. Jain and Others Vs. Indore Development Authority and Others, (2005) 1 ESC 1 : (2005) 104 FLR 53 : (2005) 1 LLJ 578 : (2004) 9 SCALE 579 : (2005) 1 SCC 639 : (2005) SCC(L&S) 154 : (2005) 3 SLJ 71 , Hon''ble the Supreme Court held that the Labour Court cannot enlarge the scope of reference nor can deviate therefrom.

Further reliance has also been placed on a judgment reported as Mukand Ltd. Vs. Mukand Staff and Officers'' Association, AIR 2004 SC 3905 : (2004) 2 CTC 430 : (2004) 101 FLR 219 : (2004) 3 JT 474 : (2004) 2 LLJ 327 : (2004) 3 SCALE 116 : (2004) 10 SCC 460 : (2004) SCC(L&S) 798 : (2004) 2 SCR 951 : (2004) 3 SLJ 204 : (2004) 2 UJ 1164 : (2004) AIRSCW 3731 : (2004) 5 Supreme 202 to contend that the Industrial Tribunal being a creature of reference could not adjudicate matters not within the purview of the dispute actually referred to it by the order of reference. In Mukand Limited case (supra), the appellant-Company concluded three different settlements relating to various service matters of its staff and officers with the Association. The respondent-Association served a charter of demand upon the Company and since the conciliation failed, the Conciliation Officer submitted a failure report, consequent to which the Maharashtra Government referred the dispute between the appellant-Company and the workmen to the Industrial Tribunal for adjudication. The dispute for referred was only in respect of workman employed by the appellant-Company, whereas the award also dealt with and espoused the cause of non-workmen. The Hon''ble Supreme Court held that the Tribunal could not have adjudicated the issue and salaries of employees which were not workmen. The Hon''ble Supreme Court held in paras No. 23 and 95 that :-

"23. We have already referred to the order of reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal, being a creature of the reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of reference. In the facts and circumstance of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming, without admitting, that the reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the "non-workmen".

The Industrial Tribunal did not have jurisdiction to adjudicate the present dispute inasmuch as it pertains to the conditions of service of non-workmen. The learned single Judge and the Division Bench of the High Court failed to appreciate that parties cannot by their conduct create or confer jurisdiction on an adjudicating authority when no such jurisdiction exists. We have already noticed that the Division Bench has erred in holding that there is community of interest between the workmen and the non-workmen and holding further that the workmen could raise a dispute regarding the service conditions of non-workmen."

Per contra the learned counsel for the respondent workman has argued that after going into the facts of the case and the evidence on the record the labour court rightly held that the respondent workman was entitled to reinstatement with 30% back wages. It has also been argued that the petitioner did not raise any objection about the matter not being decided according to the reference, but lead evidence as per the question framed and as such is now estopped from raising any plea.

I am of the opinion that in the present case, without going into the other issues and placing reliance upon the above judgments, it is held that the Labour Court traveled beyond its jurisdiction in deciding and modifying the reference order made by the Appropriate Government. The question posed by the Appropriate Government was limited to the extent as to whether or not the termination was legal and valid and if so, what relief he would be entitled to, whereas the Labour Court has framed its own question as to whether or not the respondent-workman had completed period of 240 days of service. This clearly was not the reference that had been answered.

The plea of estoppel as raised by the respondent is not maintainable in the present case since the labour court traveled beyond the reference and this being pure a question of law can be argued at any stage, leading of evidence in accordance with the issue framed by the labour court would not amount to waiver.

Resultantly, the award passed by the Labour Court is beyond the scope of reference being a nullity, unenforceable and in executable and is set aside. The workman may approach the Appropriate Government for demanding the reference. As the matter is very old, if the workman makes such an application, the Appropriate Government is requested to pass appropriate order on his application expeditiously and in case the reference is made, the Labour Court is requested to dispose of the claim petition expeditiously preferably within a period of one year.

With the above observations, the above noted writ petition is allowed and the award dated 12.6.2001 is set aside. With no orders as to costs.