Gujarat High Court
Torrent Power Ltd & vs Gujarat Audhyogik Kamdar Mahamandal & 3 on 12 August, 2016
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/13807/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13807 of 2016
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TORRENT POWER LTD & 1....Petitioner(s)
Versus
GUJARAT AUDHYOGIK KAMDAR MAHAMANDAL & 3....Respondent(s)
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Appearance:
MR. MIHIR JOSHI, SENIOR ADVOCATE with MR. K.B.NAIK, ADVOCATE for
M/S TRIVEDI & GUPTA, ADVOCATE for the Petitioners.
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 12/08/2016
ORAL ORDER
1 By the present petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 28.3.2016 passed by the Deputy Labour Commissioner making reference in exercise of the powers under section 10(1) of the Industrial Disputes Act, 1947 ("the Act") as also the notice dated 22.4.2016 issued by the Industrial Tribunal, Ahmedabad ("the Tribunal") in Reference (IT) No. 94 of 2016.
2. Learned Senior Advocate Mr. Mihir Joshi appearing with learned Advocate Mr. K.B. Naik for M/s. Trivedi & Gupta, Advocate for the petitioners submitted that the reference made is for permanency benefits for the workers who are not working as contractor's workers with the petitioners after 2014. Mr. Joshi submitted that reference for permanency benefits like absorption can be made for the workers who are in employment, however, since they have not worked with petitioner after 2014, the reference is incompetent. Mr. Joshi Page 1 of 8 HC-NIC Page 1 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER submitted that if the contractor's workers are not working with the petitioners, it cannot be said that industrial dispute existed between the workers and the petitioners. Mr. Joshi submitted that simply because one of the terms of the reference is as regards reinstatement of the workers, that would not be a ground to make the reference as under the guise of raising dispute for reinstatement, for alleged illegal action of relieving the workers before about 2 years, the concerned authority was not justified in exercising the powers under section 10(1) of the Act. Mr. Joshi submitted that the reference made is invalid and the notice issued by the Tribunal based on such reference cannot be termed as legal notice and, therefore, the order making reference and the notice issued by the Tribunal both are required to be quashed and set aside. Mr. Joshi has relied on the decision of the Hon'ble the Supreme Court in the case of Oshiar Prasad v. Employers in relation to Management of Sudamdih Coal Washery of M/s. BCCL, Dhanbad, Jharkhand reported in (2015) 4 SCC
71.
3. The Court, having heard the learned Senior Advocate Mr. Joshi for the petitioners and having perused the terms of reference with the order dated 28th March, 2016, finds that the reference made under the impugned order is not for absorption or regularization of the services of the workmen on the ground that they have been in service for a long time. The reference made is in two parts. One is that whether services of the workers shown in Schedule-A working with the petitioner No.1 Company as Meter Reader are illegally terminated from 1.12.2014 on termination of the so called contract and they should be reinstated in service with continuity of service and back wages or not? The second part of the reference is that the so called contract between the petitioner No.1 Company and the contractor for the work of meter reader was sham, bogus, eye-wash, Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER camouflage, and only paper arrangement and the work of meter reading is permanent work without which the petitioner no.1 cannot function and, therefore, whether the workmen shown in schedule - A should be given the pay and other benefits by treating them as permanent workers from the date of their entry in service or not. The above terms of reference would go to suggest that the first part of the reference is in connection with the industrial dispute as regards alleged illegal termination of services of the workmen shown in Schedule-A. The second part of the reference is for deciding the industrial dispute as to whether the contract under which the workers were employed to work with petitioner no.1 company was bogus, sham, eye-wash and camouflage and was just paper arrangement and for grant of benefits available to the permanent employees of petitioner to the workers shown in schedule A by treating them as permanent employees of petitioner no.1. Therefore, from the terms of reference, it does not appear that the reference is for deciding the dispute on the question of absorption or regularization of the workers. When the dispute raised by the union is relating to the question as to whether the services of the workmen were illegally terminated from 1.12.2014 in the name of termination of contract, the dispute referred for such question could well be decided by the Tribunal and if it is found that in the name of termination of the contract, the services of the workers were illegally terminated, the Tribunal in the context of the other part of the reference as to whether the contract was sham, bogus or camouflage, can certainly exercise the jurisdiction on the question of grant of reinstatement in service with other benefits as per the reference. If the tribunal is to hold that the contract was sham, bogus or camouflage, and was just paper arrangement made to deprive the workers from getting benefits of permanent employees,it can very well confer the benefits of permanent employees to the workers by treating them as permanent employees Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER of petitioner no.1 company. In the case of Oshiar Prasad (supra), the reference was made in the following terms:
"Whether the management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd., P.O. Sudamdih, Dist. Dhanbad are justified in not absorbing Sarvashri Gorakh Sharma and 38 others as their regular employees? If not, to what relief are the said workmen entitled?"
4. In the nature of terms of reference in the said case, the Hon'ble Supreme Court held and observed in para 17 to 25 as under:
"17. Before we examine the factual matrix of the case in hand, we consider it apposite to take note of law laid down by this Court regarding the powers of the appropriate Government in making reference under Section 10 of the Act and the jurisdiction of the Tribunal while answering the reference. Indeed it is well settled and remains no more res integra .
18. One of the questions which fell for consideration by this Court in Delhi Cloth and General Mills Co. Ltd. v. The Workmen and others (AIR 1967 SC 469) was that what are the powers of the appropriate Government while making a reference and the scope and jurisdiction of Industrial Tribunal under Section 10 of the Act.
19. Mitter, J. speaking for the Bench, held as under: (Delhi Cloth and General Mills case, AIR p.472, paras 8-9) "(8) ......Under S. 10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring "the dispute or any matter appearing to be connected with, or relevant to the dispute, .....to a Tribunal for adjudication" under S.10(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."
(9) From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary :
"happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated :"
"Something incidental to a dispute" must therefore 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. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct (to it)."
20. The same issue came up for consideration before three Judge Bench in a case reported in Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. Justice Y. V. Chandrachud - the learned Chief Justice speaking for the Court laid down the following proposition of law: (SCC pp 764-65) "10. Two questions were argued before the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent's contention that the question of retrenchment compensation has to be decided under Section 33-C(2) of the Central Act.
11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management."
21. The abovesaid principle of law has been consistently reiterated in M/s. Firestone Tyre and Rubber Co. of India (P) Ltd. v. The Workmen Employed, represented by Firestone Tyre employees' Union AIR 1981 SC 1626, National Engineering Industries Ltd. v. State of Rajasthan and Ors., (2000) 1 SCC 371 : (AIR 2000 SC 469), Mukand Ltd. v. Mukand Staff and Officers' Association, and State Bank of Bikaner and Jaipur v. Om Prakash Sharma,
22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when "Industrial dispute exists" or "is apprehended between the parties". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori , no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference.
23. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to appellants' absorption in the services of the BCCL on the date of making the reference.
24. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor this issue could have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as they were not in the employment.
Page 6 of 8HC-NIC Page 6 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER
25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination."
5. It is required to note at this stage that in the said case, 39 employees who raised dispute were terminated from service and the reference was sought for their absorption. However, the reference was decided by the Tribunal and it was thereafter the award of the Tribunal was examined by the Court.
6. However, following observations in para 26 are relevant:
"26. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of appellants' employment and-whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants."
7. Therefore, as observed by the Hon'ble Supreme Court, industrial dispute could be referred to the industrial tribunal for adjudication in relation to the termination of employment as to whether it was legal or not. The Hon'ble Supreme Court has taken note of the fact that industrial dispute as regards termination was not referred to the tribunal and, therefore, it attained finality against the employees. Thus, for the employees whose services are terminated, dispute concerning their demand for absorption or regularization cannot be referred. Such dispute could be referred only when the employee is in service. However, if the industrial dispute exists in relation to the termination of services of the employee, such dispute could always be referred on the question whether the termination is legal or not. In the case on hand, such Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Aug 17 02:03:17 IST 2016 C/SCA/13807/2016 ORDER industrial dispute existed for which the reference was made. Since the dispute referred is not simply for absorption or regularization of services of the workers, the reference made under the impugned order cannot be termed as invalid. Since the reference is found to be valid, notice issued by the tribunal cannot be held to be bad in law.
8. In view of the above, the petition is rejected.
(C.L.SONI, J.) anvyas Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Aug 17 02:03:17 IST 2016