Bombay High Court
Iqbal Ahmed Kamaruddin vs P.L. Majumdar And Anr. on 26 February, 1992
Equivalent citations: (1993)IIILLJ571BOM
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. This Writ Petition, under Articles 226/227 of the Constitution of India, impugns an Award of the first Labour Court, Thane dated 30th October, 1984, made in Reference (IDA) No. 42 of 1979 under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act).
2. Though the petition is styled as a petition under Articles 226/227 of the Constitution of India, in my view, it can be properly treated as a petition under Article 227 of the Constitution of India and I have done so.
3. The Petitioner raised an Industrial Dispute that he was a workman employed in the industrial establishment of the Second Respondent and alleged that he had been wrongfully dismissed with effect from 25.9.1979. He demanded reinstatement in service with full back wages and continuity of service with effect from 25.9.1979. His industrial Dispute came to be processed in accordance with the Act and ultimately resulted in a reference to the First Labour Court, Thane, marked as reference (IDA) No. 42 of 1979, for adjudication in accordance with law.
4. Since some controversy has arisen in connection with the exact nature of the dispute, it would be worth-while to notice that the order of reference dated 27th March, 1978, referred the Industrial Dispute between the Second Respondent and Petitioner "over the demand mentioned in the schedule appended hereto" for adjudication of the Labour Court. The Schedule reproduces the demand in the following terms :
"I, Shri Iqbal Ahmed Kamruddin should be reinstatd with full back wages and continuity of service w.e.f. 25.9.1977".
5. The Second Respondent contested the reference on several grounds including the ground that the Petitioner had never been employed by it. The second Respondent contended that the Petitioner was never in its employment, that there was no relationship of workman and employer and as such the entire claim deserved to be rejected. It also contended that the Petitioner had filed his claim only with a view to make wrongful gain to himself and cause wrongful loss to it. At the time of the trial, apart from relying on his oral testimony, the petitioner did not make any application for production of any documents alleged to be in the custody of the Second Respondent= employer, nor did he produce any document in support of his case. The evidence before the Labour Court consisted only of the oral evidence produced by the Second Respondent employer, which consisted of the oral testimony of its partner Abdul Hakim Mohamad Hanif. Upon assessment of the evidence before it, the Labour Court took the view that the Petitioner had failed to establish that he was in the employment of the Second Respondent, much less, that his services had been wrongfully terminated by the employer i.e. the second Respondent. In this view of the matter, the Labour Court answered the issues framed by it against the Petitioner and rejected the demand in the reference by its impugned award dated 30th October, 1984. Hence the Petition.
6. It is contended on behalf of the Petitioner that the Labour Court has exceeded its jurisdiction in entertaining the controversy as to whether the Petitioner was employed in the establishment of the Second Respondent. It is submitted that there was no controversy raised before the Conciliation Officer, or at any time before the reference was made, that there was not in existence a relationship of employer = employee between the Petitioner and the Second Respondent. This was the substratum of the reference and therefore the Labour Court was bound to adjudicate the demand referred to it upon this substratum. By going into the issue as to whether there existed a contract of employment and whether the petitioner was at all a workman of the Second Respondent, the Labour Court has exceeded its jurisdiction, is the submission of the learned counsel for the petitioner, who supported his submission by placing reliance upon a Judgment of the learned Single Judge of this Court in Anantharaman Raman and Anr. v. K.N. Vani and Ors. 1982(44)FLR 189 and the Judgment of the Supreme Court in Delhi Cloth and General Mills Company Ltd. v. Their Workmen and Ors. 1967(1) LLJ 423 (SC) and Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. .
7. In my Judgment, the contention of the Petitioner is entirely misconceived. It cannot be postulated that once a reference has been made, it cannot be challenged during the adjudication proceeding. It is true that, as held by the Supreme Court in Delhi Cloth and General Milles case (Supra), if the reference has been made upon a particular factual basis, it is not open to either party to the reference, nor even to the adjudicator, to alter the said basis. In the Delhi Cloth and General Mill's case, the reference was with regard to wages for the period of strike, and the Supreme Court took the view that it was not open to the Tribunal to decide the issue as to whether the strike amounted to an illegal lockout and, if so, what was the compensation to be given. The same was the situation in Anantharama's case (Supra) where the Tribunal was held to have travelled beyond the scope of reference in that the reference was whether the employees should be immediately allowed to resume duties without attracting any stigma and be paid their full wages till allowed to do so, while the Tribunal proceeded to consider the question whether the strike resorted to by the employees was legal or otherwise.
8. Reliance was placed upon the provisions of Section 10(4) of the Act in support of the submission that the jurisdiction of the Labour Court is delimited by the order of reference and where the appropriate Government had specified the points of dispute for adjudication, the Labour Court was bound to confine its adjudication to those points and matters incidental thereto. It was also urged that what has been actually adjudicated in the present case was not an incidental matter. This proposition of law, springing from the construction of Section 10(4), is indubitable, but what is missed is that a reference can only be an Industrial Dispute. The expression 'Industrial Disputes' is defined in Section 2(k) as under :
2(k) "Industrial Disputes" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment or with conditions of labour of any person".
If what is referred to a Tribunal/Labour Court is not an Industrial Dispute, it is always open to a party to show to the forum that the dispute referred for adjudication, though purported to be an Industrial Dispute, is in reality not an Industrial Disputes at all. This has always been recognised as an exception to the general rule postulated in Section 10(4). It is, therefore, always permissible for an employer to raise an issue as to whether what has been referred is an Industrial Dispute at all and there can be no question of the Tribunal being bound by the order of reference. It is settled law that the appropriate government makes a reference upon a prima facie view of the matter as to the existence or apprehension of an Industrial Dispute; it is open to the parties to show that what is referred is not in reality an Industrial Dispute at all (See in this connection Newspapers Ltd. v. Industrial Tribunal, Uttar Pradesh and Ors. 1957 II L.L.J. 1; Banaras Ice Factory Ltd. v. Their Workmen 1957 I L.L.J. 253, Andhra Pradha Ltd. and Ors. v. Madras Union of Journalists (by Secretary) and Ors. 1968(1) LLJ 15.
9. Even if the reference proceeded on the footing that the Petitioner was employed by the Second Respondent and that his services had been wrongfully terminated, it was open to the Second Respondent to contest the said assumption and invite the Tribunal/Labour Court to go into question as to whether the Petitioner had ever been employed by the Second Respondents. This the Second Respondent employer did in terms. The Labour Court recorded evidence and upon the assessment of the evidence the Tribunal has recorded a finding that the Petitioner was not at all employed in service of the Second Respondent. In these circumstances, it is difficult to accede to the submission of the learned counsel for the Petitioner that the impugned award suffers from a mis-direction in law or that it is in excess of jurisdiction.
10. Mr. Puri learned counsel for the Petitioner, also attempted to assail the findings of fact recorded by the Labour Court. Such attempt cannot be sustained. The learned counsel has taken me through the impugned award of the Labour Court and the relevant material on record. I find nothing in the award which could be characterised as perverse or calling for interference. The fact that the Petitioner did not call for any documents has been emphasised by the Labour Court. Mr. Puri submitted upon the authority of the Supreme Court in Gopal Krishnaji Ketkar's case (Supra) that there was an obligation upon the first Respondent was required to maintain under the statute and that for its failure, an adverse inference must be drawn against it. I am afraid that reliance on Gopal Krishnaji's case is somewhat misplaced in the facts and circumstances of the present petition. In the instant case, there was no attempt made by the Petitioner to produce any documents either from his custody or to call for the documents from the custody of the Second Respondent the existence of which he ought to have averred upon oath. In the absence of any such attempt, it is not possible to conclude the matter by an adverse inference as suggested. The petitioner merely relied upon his oral evidence and as to the assessment thereof the Labour Court is the competent Court and I find nothing therein which would warrant interference with its assessment of evidence or the findings recorded therefrom.
11. In the result, I find no merit in the petition which is hereby dismissed.
12. Rule discharged. However, in the circumstances of the case, there shall be no order as to costs.