Punjab-Haryana High Court
Karnal Central Coop. Bank Ltd. vs P.O., Indl. Tribunal-Cum-Labour Court ... on 10 November, 1993
Equivalent citations: (1994)IILLJ1005P&H, (1994)106PLR310
JUDGMENT N.K. Sodhi, J.
1. This petition under Article 226 of the Constitution of India is directed against an award of the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak who on a reference made under Section 10(1)(c) of the Industrial Disputes Act, 1947 (hereinafter called the Act) held that the workman respondent was entitled to re-in-statement with continuity of service and full back wages with effect from the date on which he raised the industrial dispute.
2. Shri Jai Prakash Maan-respondent (for short the workman) was appointed as Clerk by the petitioner-Bank on March 1, 1980 and his services were dispensed with on September 20, 1980. He worked for a total period of about 185 days only. After about ten years from the date of his discharge, he raised an industrial dispute on February 15, 1990 by sending a demand notice under Section 2(a) of the Act calling upon the management to take him back in service with full back wages from the date when his services were terminated. On receipt of this demand notice, the Labour-cum-Conciliation Officer, Panipat held conciliation proceedings and summoned the management who filed a detailed written reply raising a number of objections. It was, inter-alia, pleaded by the management that the workman had not completed 240 days in service and that the industrial dispute was being raised after a period of about 10 years. The conciliation proceedings proved abortive and the Conciliation Officer sent his failure report to the State Government, who on a consideration of all the facts, including the failure report, by a letter dated September 15, 1990 declined to refer the dispute for adjudication on the ground that the same had been raised after a period of 10 years from the date of termination of service and that the workman had given no reason for this in ordinate delay. It appears that the workman represented to the State Government in December, 1990 against its action in refusing to refer the dispute. This representation too was rejected and the decision of the State Government was communicated to the workman as per letter dated February 20, 1991, a copy of which was forwarded to the management of the Bank as well. Thereafter, the Govt. of Haryana formed an opinion that a dispute existed between the management of the Bank and the workman regarding termination of his service and referred the following dispute for adjudication to the Presiding Officer, Industrial Tribunal-cum-Labour Court, Rohtak:
"Whether the termination of services of Shri Jai Parkash Maan is justified and in order? If not, to what relief is he entitled?;"
On receipt of the aforesaid reference, the Labour Court after recording the evidence of the parties and hearing their representatives found that the management after terminating the services of the workman had appointed several persons as Clerks. It was also held that the posts of Clerks had been advertised and the workman too had applied for the same but was not appointed even though he had been interviewed along with other candidates. It was also found that the Managing Director of the Bank who terminated the services of the workman had no authority to do so and for this reason as well the termination was illegal. The Management, according to the Labour Court, also did not comply with the mandatory provisions of Section 25H of the Act in as much as the workman was not re-employed when appointment had been offered to others. Consequently, the reference was answered in favour of the workman holding that he was entitled to re-instatement with continuity in service with full back wages only from the date of demand notice. It is this award of the Labour Court that has been impugned in the present petition.
3. The first contention advanced on behalf of the petitioner-bank is that the reference made by the State Government in January, 1992 was illegal and violative of the principles of natural justice. It was submitted that the earlier claim to a reference having been declined by the Government in September, 1990 after conciliation proceedings were held, the Government could not refer the same dispute without affording an opportunity of hearing to the petitioner. It was also urged that the reference made by the State Government was liable to be struck down on the ground of delay as well. I find merit in both these contentions.
4. It is not disputed that the services of the workman were dispensed with on September 20, 1980 and he sought to raise an industrial dispute by serving a demand notice on the management in February 1990. The reference sought by the workman was declined by the State Government in September, 1990 on the ground that the same had been raised after a period of about 10 years. Subsequently, when the reference was made in January, 1992, it was necessary for the State Government to have atleast afforded an opportunity of hearing to the petitioner-management. There is nothing on the record to show that any notice had been issued to the management in this regard. It has been held by a Division Bench of this Court in M/s Escorts Limited, Faridabad v. Industrial Tribunal, Haryana, Faridabad, and Ors. 1983 LAB, I.C. 223 that the rule of audi alteram partem is attracted to the exercise of power a second time un.der Section 10(1) of the Act while referring the industrial dispute for adjudication after the same had been rejected earlier. Again, the reference was declined in September, 1990 on the ground of delay. The workman has not shown any cause, much less sufficient cause, for invoking the jurisdiction of the Tribunal after a period of 10 years. It is not understood that when the State Government declined to refer the dispute in September, 1990 on the ground of delay how it could refer the same in January, 1992 when the delay had further increased. I have seen the record and there is nothing to justify the making of the reference at such a belated stage. Consequently, the impugned award based on this reference has to be quashed.
5. Learned counsel for the petitioner also urged that since the workman had not put in 240 days of service, he was not entitled to any relief under the provisions of the Act and the Tribunal erred in law in directing his re-instatement. This contention too has merit and must prevail. It is by now well settled that industrial workers who do not complete 240 days of service have no industrial rights under the Act and cannot, therefore, avail of the machinery provided under the Act for the settlement of their disputes. The policy of the Act draws a distinction between those with service of 240 days and more and others with less. It was not necessary for the management in the present case to comply with the provisions of Section 25H of the Act before dispensing with the services of the workman as he admittedly had less than 240 days of service.
6. Lastly, it was urged on behalf of the workman that even though his service was less than 240 days, he was entitled to re-employment in terms of Section 25H of the Act. This may be so, but the dispute regarding his re-employment in terms of Section 25H had not been referred to the Labour Court and, therefore, it could not be adjudicated upon. It is well settled that the Labour Courts and Tribunals under the Act are not Courts of plenary jurisdiction and the limits of their jurisdictions are circumscribed by the provisions of Sub-section (4) of Section 10 of the Act according to which the Labour Court has to confine its adjudication to the points of dispute specifically referred to it under Section 10(1) of the Acts. What was referred in the instant case was the dispute relating to his termination and not the one which he sought to raise before the Labour Court regarding his employment. Re-employment in terms of Section 25H of the Act pre-supposes a valid termination in the first instance and therefore, constitutes a different cause of action and can be gone into by the Labour Court only if a reference is to be made in this regard but not otherwise. It cannot be described as a matter incidental to the dispute relating to termination.
7. In the result, the writ petition is allowed and the impugned award quashed leaving the parties to bear their own costs.