Madhya Pradesh High Court
Rajya Gramin Vikash Sansthan vs State Of M.P. And Ors. on 7 August, 1990
Equivalent citations: (1995)IIILLJ409MP, 1991(0)MPLJ225
Author: Faizanuddin
Bench: Faizanuddin
JUDGMENT
Faizanuddin, J/
1. In this petition under Article 226 of the Constitution of India, the petitioner challenges the proceedings before the Assistant Labour Commissioner and the order of reference dated 1.12.1989 (Annexure P.15) made by the Additional Commissioner (Labour) under Section 10(1) read with Section 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') referring the dispute to the Labour Court.
2. The petitioner is a Department of the Government of Madhya Pradesh known as "State Institute For Rural Development" (hereinafter referred to as 'the State Institute'). Respondent No. 5 Naresh kumar was appointed as Driver in the petitioner State Institute by order dated 19th May, 1987 (Annexure P.2). By order dated 16th August, 1988 (Annexure P.5) the services of respondent No. 5 were terminated. Respondent No. 5 raised an industrial dispute by making an application under Section 10 of the Industrial Disputes Act, 1947, before the Assistant Labour Commissioner, Jabalpur. The petitioner, State Institute entered appearance before the Assistant Labour Commissioner and filed reply stating that it is purely a department of the State Government and the activities of the State Institute do not fall within the definition of 'industry' nor the respondent No. 5 is a 'workman', as defined in the Act and, therefore, the provisions of the Industrial Disputes Act are not attracted to the case and, therefore, the alleged dispute was beyond the jurisdiction of the Labour Court. The Assistant Labour Commissioner forwarded the record to the Additional Commissioner (Labour) who made the impugned reference to the Labour Court referring the following question for adjudication.
Hindi matter
3. Learned counsel for the petitioner contended that having regard to the facts placed before the Assistant Labour Commissioner, it is not an industrial dispute within the meaning of Section 2(k) of the Act as neither respondent No. 5 is a workman as defined in the Act nor the petitioner State Institute is an industry within the meaning of the Act. He, therefore, urged that initiation of conciliation proceedings by the Assistant Labour Commissioner and the Additional Labour Commissioner and the impugned order of reference are beyond jurisdiction. For the same reason it has been contended that the Labour Court has absolutely no jurisdiction to proceed with the case assuming it to be an industrial dispute. Learned counsel for the petitioner further contended that though the petitioner has specifically pleaded the aforesaid facts in its statement of claim filed before the Assistant Labour Commissioner and in the written statement filed before the Labour Court; but neither the Assistant Labour Commissioner nor the Additional Labour Commissioner dwelt on the said points nor framed any question on the point of jurisdiction while making a reference of tne dispute to the Labour Court. He, therefore, submitted that the entire proceedings are without jurisdiction and must be quashed. As against this, learned counsel appearing for respondent No. 5 contended that the question whether the petitioner State Institute is an industry and whether respondent No. 5 is a workman within the definition under the Act, are incidental to the question already referred and, therefore, the same can be examined and adjudicated in the order of reference itself and, therefore, the absence of specific question regarding the jurisdiction would not invalidate the order of reference.
4. Section 12 of the Act deals with the duties of Conciliation Officers and the circumstances in which, on failure of the conciliation, a reference of the dispute is to be made by the appropriate Government for adjudication by the Labour Court, Tribunal or National Tribunal, as the case may be. Where the appropriate Government does not consider it necessary to make a reference, it shall record reasons for the same and communicate the same to the parties concerned. In the cases where the appropriate government is satisfied that there is a case for reference, it shall refer the dispute in accordance with Section 10 of the Act. Here before examining the point in controversy, it would be relevant to refer to Sub-section (4) of Section 10 of the Act which is directly attracted to the facts of the present case.
Sub-section (4) of Section 10 reads as under:
"10. Reference of dispute to Boards, Courts or Tribunals.
(1) xxx xxx xxx xxx (4) Where in an order referring an industrial dispute to 'a Labour Court, Tribunal or National Tribunal' under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, 'the Labour Court or the Tribunal or the National Tribunal, as the case may be' shall confine its adjudication to those points and matters incidental thereto."
5. It may be pointed out that (the Labour Courts and Industrial Tribunals are not a Court of general or inherent jurisdiction like a Civil Court embracing all matters of civil nature; but they have only specific jurisdiction circumscribed by the terms of an order of reference. A bare reading of Sub-section (4) of Section 10 of the Act will go to show that the Tribunal has to confine its jurisdiction to those questions and points which are referred to it and matters incidental thereto. According to the scheme of the Act, a Tribunal has only to determine the dispute referred to it and it has no jurisdiction to deal with a dispute beyond those questions and points which are referred to it.) The question, therefore, arises whether in the absence of specific question being referred in that behalf, a challenge to the jurisdiction of the Tribunal, inasmuch as the employee is or not a workman and the Management or employer is an industrial concern or not, covered by the definition of the Act, can be gone into or not by the Tribunal to which a reference has been made.
6. A perusal of Sub-section (4) of Section 10 of the Act makes it clear that it permits the Tribunal to decide the dispute referred to it and also matters 'incidental thereto'. The question, therefore, that arises for consideration is whether the question of jurisdiction of the Tribunal in the facts and circumstances stated above would be a dispute or a point incidental to the question already referred as quoted in paragraph 2 above or not. A point would be incidental to another point/dispute when the former essentially and substantially depends upon the other. The expression "incidental thereto" implies a subordinate and subsidiary point concerning some other main or principal point requiring casual attention while considering the main point. In the case of Delhi Cloth and General Mills Co. Ltd. v. The Workmen and Ors., 1967-I LLJ 423 their Lordships had an occasion to construe and interpret the word 'incidental' occurring in Sub-section (4) of Section 10 of the Act with the aid of 'Webster's New World Dictionary' in which the words 'incidental' means an incident, cause, hence, secondary or minor but usually associated. The Supreme Court in the aforesaid decision took the view that something incidental to a dispute must 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 and, therefore, something incidental cannot cut at the root of the main thing to which it is an adjunct.
7. The question whether the adjudication of one matter is incidental to the adjudication of another depends on the facts of each case, the pleadings of the parties and the issues which properly arise for determination. For instance, an 'industrial dispute' being referred to the Labour Court/Tribunal, the question may arise whether the Labour Court/Tribunal has jurisdiction to determine on the facts placed before it and whether an 'industrial dispute' has really arisen within the meaning of Section 2(k) of the Act or the concerned persons are 'workmen' as defined in Section 2(s) or a particular establishment/undertaking is an 'industry' within the meaning of Section 2(j) of the Act. Such questions, therefore, can validly be examined and adjudicated in order of the reference itself as matters incidental to the points in dispute specified in the order of reference. Such incidental matters as aforesaid have to be determined necessarily as collateral or jurisdictional issues, because the jurisdiction of the Labour Court/Tribunal depends upon such determination which go to the root of the case. Here a reference may also be made to the decision in the case of the Workman of Hindustan Lever Ltd. and Ors. v. The Management of Hindustan Lever Ltd., 1984 L.I.C. 276 (SC) wherein the Supreme Court observed that 'ordinarily the Tribunal after ascertaining on what issue that parties are at variance raises issues to focus attention on points in dispute'. In industrial adjudication, issues are of two types (i) those referred by the Government for adjudication and set out in the order of reference, and (ii) incidental issues which are sometimes the issues of law or mixed issues of law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issues as the same would go to the root of the matter.' See also -D.P. Maheshwari v. Delhi Administration and Ors., (1984)-2 LLJ 425.
8. From the foregoing discussion it clearly turns out that once a reference had been made to the Tribunal, the Tribunal has to decide not only the main question referred to it in the order of reference but also all questions and points which are incidental to the main dispute. In the present case on perusal of the claim and written statement filed by the petitioner we find that it did raise the dispute that the petitioner was not an industry nor the respondent No. 5 was a workman within the meaning of the Act and hence no 'industrial dispute' can be raised nor the Laboour Court (sic) be ceased of the jurisdiction under (sic) Act. These points raised by the petitioner are matters incidental to the main question referred for adjudication and, therefore, by virtue of the provisions contained in Sub-section (4) of Section 10 of the Act, the Labour Court would be within its power to decide the same and this Court would be slow in deciding such issues on merits. The Supreme Court in the case of D.P. Muheshwari v. Delhi Administration and Ors., (supra), observe as under:
"Tribunals entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in disputes at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Article 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them. Neither the jurisdiction of the High Court under Article 226 of the Constitution nor the jurisdiction of the Supreme Court under Article 136 may be allowed to be exploited by those who can well afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues avoiding decision on issues more vital to them. Article 226 and Article 136 are hot meant to be used to break the resistance of workmen in this fashion."
9. In view of the aforesaid discussion, the questions raised by the petitioner before this Court in this petition regarding the jurisdiction as aforesaid, are questions incidental to the question referred by the Addl. Commissioner (Labour) and hence the same would be decided by the Labour Court.
10. Consequently the petition fails and is hereby dismissed. We make no order as to costs. The outstanding amount of security, if any, shall be refunded to the petitioner.