Delhi High Court
Sh. Mahipal Singh vs Presiding Officer, Industrial ... on 11 May, 2010
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3802/1998
% Date of decision: 11th May, 2010
SH. MAHIPAL SINGH ..... Petitioner
Through: Mr. I.C. Kumar, Advocate
Versus
PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL-III & ORS. ..... Respondents
Through: Ms. Sushma Singh, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether the judgment should be reported
in the Digest? Yes.
RAJIV SAHAI ENDLAW, J.
1. The petitioner workman by this petition impugns the order dated 17 th January, 1998 of the Industrial Tribunal in a proceeding commencing with the following reference made by the Delhi Administration:
"Whether the termination of services of Sh. Mahipal Singh is illegal and / or unjustified, if so, to what relief is he entitled and what directions are necessary in this respect?
2. It was the case of the petitioner workman resident of District Meerut, Uttar Pradesh, that he was appointed as Work Mistry on 13th March, 1984 in the National Seeds Corporation Ltd. (NSCL), having its head office at W.P.(C)3802/1998 Page 1 of 9 Beej Bhawan, Pusa Complex, New Delhi, by its Joint Manager Sh. K.C. Aggarwal at Delhi; however no appointment letter was issued to him and he was sent for work first to Bareilly and then to Bhopal and whereafter his services had been terminated. The respondent NSCL while contesting the claim of the petitioner workman also contended that the Delhi Administration which had referred the dispute to the Industrial Tribunal had no power or right to refer the same and hence the terms of reference were without jurisdiction and bad in law. It was contended that the petitioner workman had worked at Bhopal and on completion of the work at Bhopal, the engagement of the petitioner workman was discontinued; that he was never appointed on any permanent or temporary post and was merely a casual worker.
3. On the aforesaid pleadings, the Industrial Tribunal inter alia framed the following issue:
"Whether the Delhi Administration is not appropriate Government to make reference?"
4. The Industrial Tribunal has vide order impugned in this petition decided only the aforesaid issue. The Industrial Tribunal has held that there was no appointment letter issued by the Delhi head office of the NSCL to the petitioner workman; that the evidence on record showed that the petitioner workman had worked for the respondent at Bareilly and Bhopal only; hence the terms of reference forwarded by Delhi W.P.(C)3802/1998 Page 2 of 9 Administration were without jurisdiction, being not vested with any right in view of no act or deed having taken place at the hands of head office, Delhi and there being no connection with the utilization of services of the petitioner workman at Bhopal. It was held that jurisdiction, if at all, is of the competent authority at Bhopal and not that with the appropriate government at Delhi. The terms of reference were thus held to be not maintainable and without jurisdiction.
5. Having held so, though other issues had also been framed but the Industrial Tribunal deemed it not advisable to discuss or advert on the same. The award was passed accordingly.
6. Aggrieved from the aforesaid the present petition was preferred. Rule was issued on 11th May, 2000. The counsels have been heard and the written synopsis filed by both counsels also perused.
7. The counsel for the petitioner workman has urged two contentions. Firstly, it is contended that the Industrial Tribunal has erred in not rendering a decision on the entire matter and disposing of the reference only on the aspect of jurisdiction / competence of the Delhi Administration to make the reference. Secondly, it is contended that the Industrial Tribunal was bound by the reference and not entitled to go into the question of jurisdiction.
W.P.(C)3802/1998 Page 3 of 9
8. As far as the first of the aforesaid submissions is concerned, the counsel for the petitioner workman relies on:
(i) D.P. Maheshwari Vs. Delhi Administration (1983) 4 SCC 293 in which the Supreme Court held that Tribunals particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues. It was further held that the High Courts in the exercise of their jurisdiction under Article 226 of the Constitution ought not to stop proceedings before a Tribunal so that a preliminary issue may be decided by them. It was yet further held that the jurisdiction of the High Court ought not to be allowed to be exploited by those who can well afford to wait to the detriment of those who can ill afford to wait by dragging the latter from Court to Court for adjudication of peripheral issues, avoiding decision on issues more vital to them.
(ii) Shops and Commercial Workers Union vs. Management of Ayurvedic & Unani Tibbia College Board MANU/DE/0176/1979 where also the Industrial Tribunal held the employer to be not an industry and for this reason did not W.P.(C)3802/1998 Page 4 of 9 answer the dispute referred to it. This Court held it to be unfortunate that the Industrial Tribunal had not decided the matter on merits. It was observed that resultantly 13 years after the reference and 10 years after the decision of the Tribunal and filing of the writ petition had elapsed without a decision on merits. The course adopted by the Tribunal by deciding only the preliminary point was deprecated and it was held that the Industrial Tribunal should decide a reference fully even when the matter of jurisdiction is raised before it. It was further observed that had the decision been given on merits of the dispute between the parties, the delay necessitated in remand could have been avoided.
9. The counsel for the respondent NSCL has neither in oral submission nor in written synopsis been able to rebut the aforesaid. In the present case also, this writ petition has remained pending for the last about 12 years and if the reasoning of the Tribunal is to be set aside, this Court would have no option but to remand the matter. It is unfortunate that the Industrial Tribunal, inspite of the settled legal position, as aforesaid, has chosen to adopt the practice / course which had been commented upon adversely by the Courts.
W.P.(C)3802/1998 Page 5 of 9
10. There is merit in the second contention also of the counsel for the petitioner workman. The counsel for the petitioner workman has in this regard relied on National Engineering Industries Ltd. Vs. State of Rajasthan (2000) 1 SCC 371 laying down that an Industrial Tribunal is the creation of a Statute and its jurisdiction is on the basis of reference and it cannot go into the question of the validity of the reference. Reliance in this regard is also placed on Karan Singh Vs. Executive Engineer 2007 LLR 1233 laying down that if the employer says that the workman has made a stale claim then the employer must challenge the reference by way of writ petition on the ground of delay and deny existence of industrial dispute and the Industrial Tribunal cannot strike down the reference on this ground. I have also had occasion recently to deal with the said aspect in Raj Kumar Jaiswal Vs. Rangi International Pvt. Ltd. MANU/DE/2859/2009 and have similarly held that if there is any grievance with respect to the reference, the remedy is by way of challenge to the reference and that under Section 10(4), 11 and 14 of the Industrial Disputes Act the Labour Court to whom the dispute has been referred is not entitled to take a plea that it lacked jurisdiction or to refuse adjudication referred to it on that ground.
11. Though the writ petition is entitled to be allowed on this ground alone but I may add that I have in Raj Kumar Jaiswal (supra) also held that industrial dispute arises at the place where the employer is exercising effective control; the State Government having jurisdiction over the place W.P.(C)3802/1998 Page 6 of 9 from which the employer exercises effective control would have jurisdiction to make the reference under Section 2 of the I.D. Act. In that case, the registered office of the employer company was at Delhi. In the present case, the head office of NSCL is at Delhi. Nothing has been shown that there was a separate establishment of NSCL at Bareilly or at Bhopal and only when a separate establishment had been proved could the dispute be said to have arisen at Bhopal. There is no finding on this aspect in the impugned order also. Reliance in this regard can be placed on Bikash Bhushan Ghosh Vs. Novartis India Limited (2007) 5 SCC 591 also. The Supreme Court in that case also added the test of whether any prejudice is suffered by the party objecting to the jurisdiction. The question of the respondent NSCL, which has its head office in Delhi suffering any prejudice in contesting the dispute at Delhi, does not arise. No prejudice has been pleaded or proved.
12. The counsel for the respondent NSCL has relied on:
(i) Workmen of Shri Rangavilas Motors (P.) Ltd. Vs. Shri Rangavilas Motors (P) Ltd. AIR 1967 SC 1040. However, the same only lays down that "ordinarily" the dispute arises at the place where the workman is working and not at the head quarters of the industry. Moreover, the said judgment has also W.P.(C)3802/1998 Page 7 of 9 been dealt with in the recent judgment in Bikash Bhushan Ghosh (supra).
(ii) Hindustan Samachar Vs. State of Orissa 1979 LAB. I.C.
106. In this, a Division Bench of the Orissa High Court held that merely because the head office exercises administrative control over the workman, does not confer jurisdiction on the government within whose territorial jurisdiction the head office is located to make a reference under Section 10 of the Industrial Disputes Act. I, however, am unable to agree with the said view for the reason aforesaid and particularly in view of the judgment in Bikash Bhushan Ghosh (supra).
(iii) M/s Hindustan Aeronautics Ltd. Vs. The Workmen AIR 1975 SC 1737; this merely holds that the appropriate government of the place where the branch office is situated would also have jurisdiction to refer the dispute and otherwise does not controvert the conclusion reached by me hereinabove.
13. The order of the Industrial Tribunal thus cannot be sustained and is set aside / quashed.
W.P.(C)3802/1998 Page 8 of 9
14. Before parting, I must notice that the legislature has made a provision (in Section 17B of the ID Act) for protecting the interest of the workmen in the event of delays in the disposal of the writ petitions impugning the awards of reinstatement in favour of the workmen. However due to the course which has been adopted in the present case, the petitioner workman has become disentitled to the said benefit also. Though the petition has remained pending in this Court for 12 years but no order for payment of any subsistence allowance also could be made.
15. Thus while allowing the petition:-
(i) The parties are directed to appear before the Industrial Tribunal on 6th July, 2010 and the Industrial Tribunal is directed to dispose of the reference now within eight months of the date when the parties first appear before the Industrial Tribunal.
(ii) The petitioner workman is also awarded costs of this writ petition of Rs.20,000/- against the respondent NSCL payable to the petitioner workman within six weeks of today.
RAJIV SAHAI ENDLAW (JUDGE) 11th May, 2010 gsr W.P.(C)3802/1998 Page 9 of 9