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Judgment
Augustine George Masih J.—The present writ petition has been preferred by the Petitioner-Union challenging the award dated 28th June, 1993 (Annexure P-l) passed on a reference made by the Government on a demand notice submitted by the Union. The Industrial Tribunal, Punjab has answered the reference against the Petitioner-Union on the ground that the reference before the Tribunal is incomplete as the claim of the Petitioner-Union and the stand of the Respondent-management was divergent from that of the reference, because of which the Industrial Tribunal is unable to give any findings on the reference.
On a demand notice filed by the Union dated 11th October, 1984, the following reference was made by the appropriate Government u/s 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as ''the Act''):
Whether the termination of services of 59 workers (list attached) is justified and in order ? If not, to what relief/ exact amount of compensation are they entitled ?
The workmen submitted their statement of claim before the Industrial Tribunal, to which the Management preferred not to file the written statement, however an application was preferred by the Management that the order of reference be quashed without asking the Management to file any written statement, since the real dispute has not been referred by the appropriate Government to the Industrial Tribunal. On the pleadings of the parties, the Industrial Tribunal proceeded to frame the following issues:
(1) Whether the dispute between the employer and the employees was that the former has resorted to lockout ? If so, whether that very dispute has been referred by the order of reference made by the Government ?
(2) In case, Issue No. 1, is decided in favour of or against the workmen, what is the effect of the same in the order of reference made by the Government ?
(3) Whether 59 workmen voluntarily absented themselves from duty ? If so, whether that very dispute has been referred by the order of reference made by the Government ?
(4) In case Issue No. 3 is decided in favour of or against the Respondent, what is the effect of the same in the order of reference made by the Government ?
The Industrial Tribunal proceeded to decide all these issues together and on consideration of the evidence led by the parties came to a conclusion that the real dispute has not been referred by the appropriate Government to the Industrial Tribunal as the workers were asserting that there was a lock-out and the Management says that the workers were on strike. This matter was not referred by the appropriate Government and the reference was only with regard to termination of services of 59 workers and not whether there was a lock-out or strike or whether the workers did not join duty deliberately or were not allowed to enter the factory premises due to lock-out. Making this the basis the Tribunal concluded that it was not in a position to give any finding on the reference made by the appropriate Government and, therefore, dismissed the reference.
Counsel for the Petitioner contends that the Industrial Tribunal could not have commented upon the reference with regard to it being incomplete or with regard to the dispute having not been referred, which arose for consideration on the basis of the demand notice. He contends that the Industrial Tribunal had no option but to proceed and decide the reference on merits as it could not go beyond the reference and was bound to answer the reference on merits. Industrial Tribunal does not have the jurisdiction and authority to say that it was unable to give a finding on the reference as the true dispute has not been referred to the Industrial Tribunal for adjudication. He contends that the Industrial Tribunal is bound to take into consideration the stands taken by the respective parties before it and while deciding the reference, the Industrial Tribunal not only can decide the reference but also matters incidental thereto. For making this submission, he relies upon a judgment of this Court in Ishwar Singh v. The State of Haryana and Ors. 1992 (1)R.S.J. 724, and two Division Bench judgments of this Court in the cases of K.K. Rattan v. Presiding Officer, Labour Court, U.T., Chandigarh and Anr. 1993 (1)R.S.J. 423, and Laxmi Kant v. Presiding Officer, Industrial Tribunal-cum-Labour Court, Gurgaon and Anr. 1998 (2) R.S.J. 604. He, on this basis, submits that the questions, which have been stated and raised by the Industrial Tribunal, are matters incidental to the dispute referred by the apporpriate Government, which relates to the termination of services of 59 workers. The Court should have proceeded to decide the incidental matters also along with the dispute referred to by the Industrial Tribunal. On this basis, he submits that the impugned award cannot be sustained and deserves to be set aside and the matter be remanded back to the Industrial Tribunal for fresh decision on merits of the case.
Counsel for the Respondent-management, on the other hand, submits that the reference, which has been made by the appropriate Government pre-supposes that the services of the workmen have been terminated by the Management. The stand of the Management is that the workmen had resorted to illegal strike. Despite various communications sent to the workers, they have failed to join duty and have absented themselves. He, therefore, submits that the assertion of the workmen that there is a lock-out, which is illegal, is pre-supposed in the reference, whereas the reference should have also contained therein the question of whether there was a lock-out or strike and whether workers did not join the duty deliberately or were not allowed to enter the factory premises due to lock-out. This reference, therefore, was not completed and the real dispute having not been referred to by the appropriate Government for adjudication before the Tribunal, the award passed by the Industrial Tribunal (impugned herein) is fully justified and does not call for any interference by this Court. He relies upon the judgments of Delhi High Court in the case of Maya Export Corporation v. Secretary (Labour) and Ors. (2002) 1 LLIV 1169, and Cimmco Birla Limited v. The State of Delhi and Ors. decided on 28th September, 2001, wherein the Court had come to the conclusion that the reference made to the Labour Court was incomplete and, therefore, the High Court quashed the reference and directed the appropriate Government to make a fresh reference within a time bound manner. He, on this basis, contends that the award passed by the Industrial Tribunal is fully justified.
I have heard the counsel for the parties and have gone through the records of the case.
The appropriate Government makes a reference u/s 10 of the Industrial Disputes Act, where it is of the opinion that any industrial dispute exists or is apprehended. On a demand submitted by the Petitioner, the appropriate Government having come to a conclusion that an industrial dispute exists made the reference to the Industrial Tribunal for adjudication on failure of the conciliation proceedings. What has been referred to is the question with regard to termination of services of 59 workers as to whether the said termination is justified and in order. It is not in dispute that the services of the workers stood terminated. It is a different matter that the Petitioner terms it as termination, whereas the Management terms the same as abandonment as they had remained absent from duty and have not rejoined despite being given various notice. On the reference having been made, the workmen had submitted their claim statements. The Management chose not to file written statement but preferred an application praying therein that the order of reference be quashed. The Tribunal had framed the issues, which have been reproduced above, which covers the stand of the workmen as well as that of the Management except that the main issue i.e. the dispute referred to the Industrial Tribunal by the appropriate Government is conspicuous by its absence. On the basis of the pleadings and the evidence led by the parties, the Tribunal was required to proceed and decide the reference on merits as it does not have any jurisdiction to comment upon the reference. The Industrial Tribunal cannot go beyond the reference and as per Section 10(4) of the Act, the Tribunal has to proceed and decide the reference on the points referred to it and the matters incidental thereto. Since the workmen and the Management had taken diametrically opposite stands with regard to the circumstances in which the services of the Petitioners have been terminated, it is the Industrial Tribunal alone which could go into the evidence adduced by the parties and give a finding as to which of the two versions is a correct one. The stands, which have been taken before the Tribunal by the parties, are matters incidental to the dispute referred for adjudication to the Industrial Tribunal by the appropriate Government. The Industrial Tribunal does not have the jurisdiction to quash the reference made by the appropriate Government nor does it have the power to state that the real dispute has not been referred to by the appropriate Government. In case parties to the reference has any reservation on the dispute referred to by the appropriate Government, it is open to the parties to approach the appropriate Forum for redressal of such grievance, if any. Once the parties chose not to challenge the reference made to the Tribunal in the appropriate Forum and when the Tribunal does not have any jurisdiction to go beyond the reference, the Tribunal cannot simply brush aside the reference made to it on the ground that the complete dispute has not been referred to it by the appropriate Government. Section 14 of the Act mandates the Court to enquire into the matters referred to it and report thereon to the appropriate Government within a period of six months from the commencement of the enquiry and u/s 15, wherein an industrial dispute has been referred to the Labour Court, Industrial or National Tribunal for adjudication, it shall hold its proceedings expeditiously and shall within a period specified in the order referring such industrial disputes or the further period extended under proviso to Sub-Section 2(A) of Section 10 submits its award to the appropriate Government. The mandate, therefore, under the law is that the Tribunal has to proceed and decide the reference on merits and submit its awards to the appropriate Government.
A Division Bench of this Court in the case of K.K. Rattan (supra) has held that when a reference is made u/s 10 of the Act, an award shall be made by the Tribunal when a dispute has been referred to it on merits as mandated u/s 15 of the Act. Further the Division Bench of this Court in Laxmi Kant''s case (supra) in para-5 has held as follows:
u/s 10(4), the Court is not only entitled to adjudicate upon the "points of dispute" but also on "matters incidental thereto". In the present case, the Petitioner had complained that his services had been illegally terminated. The appropriate Government had made a reference without giving any opportunity to the Management. In fact, the appropriate Government had only considered the question regarding the existence of some dispute. It did not have to adjudicate upon the matter. The making of a mere reference does not mean that a finding has been recorded that the Petitioner''s services had been terminated. The dispute referred to the Labour Court was--"whether the termination is in order ?" The Management was not precluded from raising any defence. It was entitled to urge that there was no order of termination and that the plea raised by the workman was unfounded. The existence of an order of termination was a matter incidental to the dispute referred to the Labour Court. It was entitled to go into this question. This is precisely what the Labour Court has done.
In the present case as well the Petitioners have submitted claim statement before the Tribunal, wherein they had taken certain grounds while submitting that the termination of the services of 59 workers was not justified and in order and accordingly, the evidence has also been adduced by the workmen. Similarly, the Management has also submitted an application projecting therein their stand in support of the action taken by the Management and have also produced evidence to that effect. On the basis of the pleadings, issues have been framed by the Industrial Tribunal, which cover the respective stands of the workmen and the Management. These issues fall within the ambit of the provisions of Section 10(4) of the Act, which empowers the Tribunal to adjudicate not only upon the points of disputes referred to it but also the matters incidental thereto, as the points which have been raised by the Petitioners as well as by the Management are points which are incidental to the points of disputes referred by the appropriate Government for adjudication i.e. "Whether the termination of services of 59 workers (list attached) is justified and in order ? If not, to what relief/exact amount of compensation are they entitled ?
The Judgments, which have been relied upon by the counsel for the Respondents i.e. M/s Maya Export Corporation (supra) and Cimmco Birla Limited (supra) are cases where the parties have challenged the order of reference before the High Court, which in exercise of its jurisdiction under Article 226 of the Constitution of India, had proceeded to decide the same on the basis of the pleadings of the parties. These judgments, therefore, are of no application to the present case as none of the parties have in this case challenged the reference made by the Government to the Industrial Tribunal.
It is a settled proposition in law that the jurisdiction of the Industrial Tribunal/Labour Court in the industrial dispute is limited to the points referred to it for adjudication, which includes matters incidental thereto. The Industrial Tribunal/Labour Court, therefore, cannot go beyond the terms of reference and is, therefore, bound by it. The Tribunal, therefore, in the light of Sections 14 and 15 of the Industrial Disputes Act is enjoined upon to decide the reference on merits, which obviously would mean the points specifically referred for its adjudication and the matters incidental thereto. In the present case, as has been held above, the points which have been raised by the Petitioners in their claim statements and by the Management in its application before the Industrial Tribunal are, apart from being points specifically referred to for adjudication, matters incidental thereto, which were required to be adjudicated upon by the Industrial Tribunal which the Industrial Tribunal has failed to do. It has thus not exercised its powers as vested in it u/s 10(4) of the Industrial Disputes Act, 1947 read with Sections 14 and 15 thereof.
In view of the above, the present writ petition succeeds. The impugned award dated 28th June, 1993 (Annexure P-l) passed by the Industrial Tribunal Punjab, Chandigarh is, hereby quashed and the matter is remanded back to the Industrial Tribunal for adjudication of the reference on merits.
The parties are directed to appear before the Industrial Tribunal Punjab on 24th July, 2009.
As the matter is old and considerable time has elapsed, the Industrial Tribunal shall endeavour to decide the reference early.