Punjab-Haryana High Court
Khem Chand vs M/S. Bhartia Cuttler Hammer And Another on 6 March, 2014
Author: G.S.Sandhawalia
Bench: G.S.Sandhawalia
CWP No. 18216 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 18216 of 2011
Date of decision: 06.03.2014
Khem Chand ...Petitioner(s)
Versus
M/s. Bhartia Cuttler Hammer and another ...Respondent(s)
CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Present: Mr. Ashwani Bakshi, Advocate,
for the petitioner.
Mr. Adarsh Jain, Advocate,
for respondent no. 1.
G.S.SANDHAWALIA, J.
The present judgment shall dispose of 15 connected cases, as common questions of facts and law are involved in all the cases, details of which are given in Annexure 'A' attached with the judgment. Facts are being taken from CWP No. 18216 of 2011, Khem Chand vs. M/s. Bhartiya Cuttler Hammer and another for disposal of the said cases.
Challenge in the present writ petition filed by the workman is to the order dated 03.11.2009 (Annexure P-6) passed by the Labour Court, Faridabad, who has allowed an application moved on behalf of the management for quashing the reference and returning the same being without jurisdiction on the ground that the workman had taken the retirement under the Voluntary Retirement Scheme (VRS). Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 2
The case of the workman is that he joined the respondent- establishment on 26.10.1973 and had worked with full dedication and an VRS was introduced as per notice dated 16.08.2000 which was to remain in operation till 31.08.2000. As per the scheme, the workers, who had attained the age of 40 years or had completed 10 years of service could opt for the same and would be entitled to 31 days salary for each completed year of service besides gratuity, leave encashment, Provident Fund and bonus. Pressure was put by the establishment on workers to opt for the scheme and some of the workers showed their unwillingness to accept the scheme and requested the management not to apply pressure tactics and a letter dated 24.08.2000 (Annexure P-2) was written by some of the workers to the General Manager, Operations. In spite of the said representation, some of the workers were forced to sign the typed performa of the VRS applications and cheques were prepared for different amounts and handed over to the workers and the formalities were completed on one and the same day. In the case of the present petitioner, the formalities were completed on 15.09.2000. A complaint had also been made to the SHO against the action on 01.09.2000 but the police refused to take any action. Accordingly, the workers raised industrial dispute on 25.10.2000 (Annexure P-5) and on the failure of the conciliation proceedings, the matter was referred by the State Government to the Industrial Tribunal-cum-Labour Court.
The management filed written statement controverting the pleas of the workman and taking the defence that he had opted for the VRS voluntarily which was replied by filing counter and reiterating the fact of the scheme.
Evidence was partly led by the workman, who deposed as his Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 3 own witness and also examined his co-worker Chaman Lal as WW-2. The establishment filed an affidavit of Senior Legal Executive Sh. Deepak Vashisht. However, an application was then filed before the Labour Court seeking returning of reference to the Government for want of jurisdiction on the ground that the workers had accepted the money under the VRS and they were not entitled to challenge the same without making refund of the amount. Replies were filed objecting to the application, however, the Labour Court, without going into the pleadings and appreciating the evidence, allowed the application vide the impugned order dated 03.11.2009 without framing any preliminary issue. Resultantly, the present writ petition came to be filed.
In the written statement, plea taken was that the petitioner had accepted the VRS and encashed the cheques and the reference made by the Government was without application of mind and, therefore, whether the termination of the services of the workman was illegal or not did not arise for consideration. The workman having encashed the cheque for payment of VRS and the amount of gratuity and on account of the relationship of employer employee having ceased to exist, the proceedings were not maintainable and the reference had rightly been returned by the Labour Court.
On merits, it was pleaded that the VRS was introduced in the year 2000 and was extended upto 15.09.2000 in view of the fast changing technology and demand of various projects and for cutting down expenses by reducing excess man power. The VRS was framed in a manner to permit the employees to exit gracefully on payment of lumpsum amount and to maintain good employer and employee relations. The application for Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 4 voluntarily retirement was submitted by the workman duly signed and witnessed by the co-worker and duly signed by the Departmental Head who recommended the application to the Personnel Manager and the same was accepted by the office where it was stated that no replacement would be required. The application was attached as Annexure R-1 whereas copy of the letter of acceptance acknowledged by the workman was R-1/2 and the application for payment of gratuity under the signatures of workman was Annexure R-1/3 and voucher was attached as Annexure R-1/4 alongwith calculation sheet made as Annexure R-1/5. It was alleged that no protest was made by the present workman on 24.08.2000 and the said letter was never signed by him. The payment of less amount of retiral benefits as against the amount promised was only an attempt to create a dispute to extract further amount from the management by creating harassment. It was denied that gundas and anti social elements were present and the workman was forced to sign the VRS settlement. It was specifically mentioned that the allegations regarding the letter dated 24.08.2000 in the complaint to the police had been introduced for the first time in the present petition and were not part of the pleadings before the Labour Court. The dispute having been raised after 1-1/2 months showed the intention of a mala fide mind and the workman having accepted the entire dues was estopped from alleging that certain dues had not been paid. The order was accordingly justified.
Counsel for the petitioner has submitted that the evidence was going on inter se the parties and the application was filed at that point of time and the reference should have been decided on merits rather than deciding the application. Reliance has been placed upon a Division Bench judgment of this Court in K.K. Rattan vs. Presiding Officer, Labour Court, Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 5 U.T., Chandigarh and another, 1993 (1) RSJ 423 to submit that the Labour Court was under a statutory duty to answer the reference and could not by way of deciding the application decline to answer the reference and return the same. Reference has also been made to the judgment of the Apex Court in Nar Singh Pal vs. Union of India, 2000 (2) SCT 523 to submit that mere acceptance of the retrenchment compensation could not estopp the workman from challenging the said VRS merely on the ground that he had encashed the cheque. It has also been submitted that the judgments relied upon by the Labour Court were in favour of the workman and there was misreading of the said judgments.
Counsel for the management-establishment, on the other hand, submitted that once the VRS was accepted by the workman and he had taken the cheque and encashed the same, he was estopped from raising any dispute. It was submitted that the only grievance raised in the demand notice under Section 2-A of the Act was that the VRS of 2000 was not at par with VRS of 1997 and, therefore, difference in the amount offered under the two schemes was a subject matter of dispute and the question that was referred to the Labour Court was not proper and thus, the reference was not maintainable. It was also submitted that under Section 2(oo)(bb) sub-clause
(a) of the Act, voluntarily retirement of the workman did not include retrenchment and, therefore, the reference to the Labour Court was not justified and the application was rightly allowed. Reliance was placed upon judgment of the Apex Court in Gyanendra Sahay vs. Tata Iron and Steel Co. Ltd., 2006-III LLJ (SC) 356; J.K. Cotton Spinning and Weaving Mills Company Ltd. vs. State of U.P. and others, (1990) 4 SCC 27; HEC Voluntary Retd. Employees Welfare Society and another vs. Heavy Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 6 Engineering Corporation Ltd. and others, (2006) 3 SCC 708; New India Assurance Company Ltd. vs. Raghuvir Singh Narang and another, (2010) 5 SCC 335 and a Division Bench judgment of this Court in Maruti Udyog Ltd. vs. State of Haryana and another, 2008-III-LLJ-549 (P & H), a Division Bench judgment of Patna High Court in Yugeshwar Kumar vs. Union of India and others, 2003-II-LLJ 1021 and a Division Bench of Madras High Court in EID Parry (India) Ltd. vs. M.N. Padmanabhan and another, 2008 (3) LLJ 687.
The facts in the present case, as noticed, was to the dispute regarding the fact whether VRS was forced upon the workman or not. The reference in question reads as under:-
"Whether the termination of the services of Sh. Khem Chand Gupta is justified & in order? If not to what relief the applicant is entitled to and with what details?"
From the claim statement filed by the workman, it would be clear and it is not disputed that the petitioner-workman's application was processed on 15.09.2000 (Annexure R-1/1) Ex.M-1 and was attested by a witness who was a co-worker and was accepted on the same day as Ex.M-2. The clearance voucher was also given on the same day on 15.09.2000 by the company and the application for gratuity was processed on the same day. Though it is the case of the workman that though the amount was paid by cheque and was encashed he raised a demand immediately on 25.10.2000 under Section 2-A of the Act wherein, a specific plea was taken that the VRS papers were signed under undue influence and coercion, apart from raising a dispute that the scheme of voluntary retirement of 1997 was better. It was also submitted that the worker had worked for 27 years 6 months and Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 7 the signatures were taken from the Personnel Department which later turned out to be the scheme of VRS. The said demand notice reads thus:-
"Under Section 2(A) of I.D. Act, 1947 I serve upon you this demand notice that you illegally, forcibly got signed some papers saying that the signatures are being taken for the personnel Department which later turned out to be a Scheme of VRS.
That the V.R.S. papers were signed under undue influence, coercion and by fraud and in utter disregard of principle of natural justice equity and fair play.
That the forcible V.R.S. given to me on 15.09.2000 after a continuous service of 27 years about
6 months for which the management did not proportionately paid the V.R.S. amount which is very much less then the amount which this management has already paid in the year 1997 under the scheme of then V.R.S. In view of the above, it is demanded that the applicant either be reinstated with full back wages with continuity of service or be proportionately paid according to the Scheme of V.R.S. of the year 1997. My date of appointment is 26.03.73 and was getting about Rs. 5,948.81 per month."
There is no denying the fact that representations had been filed by certain set of workers on 24.08.2000 and on 01.09.2000 to the SHO against the action of the management. Though the stand of the management is that these were not part of the Labour Court record and the present workman was not signatory to the said representations, this Court is of the opinion that this issue had to be decided by the Labour Court by taking into account the evidence on record. There is no denial to the fact that the petitioner had deposed in respect of his claim and also examined his co- Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 8 worker Chaman Lal as WW-2 in support of his averments. Instead of taking the evidence of the management on record and permitting the workman to cross examine the witnesses of the management-establishment, the application was entertained at the wrong time. The Labour Court resorted to a short cut to decide the issue and has allowed the application in a summary manner, which cannot be permitted. The observations of the Division Bench in K.K. Rattan's case (supra) would be fully applicable in the context of the circumstances. In the said case, the Labour Court had dismissed the reference in default and for non-prosecution. The subsequent application for restoration was also dismissed. The question that came up for consideration before the Division Bench of this Court was that whether the Labour Court is bound to answer the reference on merits. After examining the provisions of the Act, the Division Bench held that there was no power conferred upon the Tribunal to dismiss the reference for non- prosecution. Accordingly, the question referred was answered in favour of the workman and it was held that the Labour Court cannot dismiss a reference for non-prosecution on the ground that the workman was absent without adjudicating on the point of dispute referred to it on merits and passing an award. The relevant portion of the judgment of K.K. Rattan's case (supra) reads thus:-
"3. The contention of the petitioner is that when a reference is made under Section 10 of the Act to the Labour Court, having regard to the scheme of the Act, the Labour Court is bound to answer the reference on merits, but it cannot be dismissed for default or for non- prosecution. The learned counsel for the respondent, however, contended that when the workman, at whose Gupta Shivani 2014.03.21 13:10 instance the reference was made, remained absent, I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 9 there was nothing further to be done by the Labour Court and, therefore, the Labour Court was justified in dismissing the reference. It is these rival contentions that have given rise to the question which we have set out in the first paragraph of this order.
4. In order to appreciate the contention, it is necessary to refer to the relevant provisions of the Act. Industrial Disputes Act is a special enactment enacted for providing machinery for resolving industrial disputes. Section 10 of the Act confers power on the State to refer an industrial dispute for industrial adjudication to the Labour Court or the Industrial Tribunal, as the case may be. Section 2A of the Act, which was introduced by the amending Act No. 35 of 1965, made an individual dispute relating to dismissal, removal or termination of service in any manner of a workman, an industrial dispute and consequently, such dispute could be raised by the workman. Section 14 of the Act is of material importance to the question arising for consideration. It reads :
"A Court shall inquire into the matter referred to it and report thereon to the appropriate Government ordinarily within a period of six months from the commencement of its inquiry."
As can be seen from the language of the above section, when a dispute is referred to a Labour Court, it becomes the duty of a tribunal to adjudicate a reference and to make an award. The word "award" is defined under Section 2(b) of the Act. It reads:-
"award" means an interim or final determination of any Industrial Dispute or any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 10 Tribunal and includes an arbitration award under Section 10A."
Therefore, when Section 15 provides that an award shall be made by the Tribunal when a dispute has been referred to it, it means, it has to decide the reference on merits. There is no power conferred upon the Tribunal to simply dismiss a reference for non-
prosecution. In a given case if a workman remains absent, it becomes the duty of the Tribunal to consider the claim statement filed by the workman as well as the written statement filed by the management and any other record which is made available to the Labour Court and it should answer the point of dispute referred to it on merits. In this behalf Section 11A of the Act is of considerable significance. That section confers power on the Labour Court to modify the penalty of dismissal, removal or termination of services to a lessor one, if the Labour Court or the Tribunal is of the view that having regard to the gravity of the charges held to have been proved against the workman, the punishment imposed was excessive. This question, the Tribunal has to determine even in the absence of the workman. Our view receives support from an earlier Division Bench judgment to this Court in Technological Institute of Textiles, Bhiwani v. Labour Court, Rohtak 1989 II CLR
379. In the said case, a Division Bench of this Court held that even if the workman is absent, the Labour Court cannot be absolved of its duty to resolve the dispute referred to it, on merits. The Division Bench further observed that a Labour Court is bound to proceed and decide the matter on merits even if the applicant absents himself. It should also be pointed out that a dispute referred under Section 10 of the Act to the Labour Court cannot be equated with a civil suit Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 11 filed in a Civil Court which can be dismissed for non- prosecution by the plaintiff. A Tribunal gets the jurisdiction to adjudicate an industrial dispute on a reference made to it under Section 10 of the Act and the duty required to be performed by it is incorporated in Section 15 of the Act whereunder it has to answer a reference on merits."
Reference can also be made to the observations of the Apex Court in The Delhi Cloth and General Mills Co. Ltd. vs. The Workmen and others, 1967 AIR (SC) 469 wherein, it was held that the parties could not be allowed to argue that the order of reference was wrongly worded and the dispute referred was not an industrial dispute. It was held that the Tribunal must look into the pleadings of the parties to find out the exact nature of dispute and the foundation of the dispute could not be challenged. It was further held that it is for the Tribunal to examine the evidence and then come to a decision that whether the workman was entitled to the wages for the period of lock out. The relevant paras read thus:-
"16. In the last mentioned case, the question whether C rank officers were workmen had to be examined by the tribunal, for, if they were not, there could be no reference under the Industrial Disputes Act. In the case before us, there is no such difficulty. The third and the fourth terms of reference in the instant case are founded on the basis that there was a strike at the Delhi Cloth Mills and a sit down strike at the Swatantra Bharat Mills and that there was a lock-out declared by the management of the Delhi Cloth Mills on 24-2-1966. On the order of reference, it was not competent to the workmen to contend before the Tribunal that there was no strike at all; equally, it was Gupta Shivani 2014.03.21 13:10 not open to the management to argue that there was no I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 12 lock-out declared by it. The parties would be allowed by their respective statement of cases to place before the Tribunal such facts and contentions as would explain their conduct or their stand, but they could not be allowed to argue that the order of reference was wrongly worded and that the very basis of the order of reference was open to challenge. The cases discussed go to show that it is open to the parties to show that the dispute referred was not an industrial dispute at all and it is certainly open to them to bring out before the Tribunal the ramifications of the dispute. But they cannot be allowed to challenge the very basis of the issue set forth in the order of reference.
17. On behalf of the respondents, Mr. Chari put before us four propositions which according to him the Tribunal had to consider before coming to a decision on these two issues. They were: (i)The fact that there was a recital of dispute in the order of reference did not show that the Government had come to a decision on the dispute; (ii) The order of reference only limited the, Tribunal's jurisdiction in that it was not competent to go beyond the heads or points of dispute; (iii) Not every recital of fact mentioned in the order of Government was irrebuttable; and (iv) In order to fix the ambit of the dispute it was necessary to refer to the pleadings of the parties. No exception can be taken to the first two points. The correctness of the third proposition would depend on the language of the recital.
18. So far as the fourth proposition is concerned, Mr. Chari argued that the Tribunal had to examine the pleadings of the parties to see whether there was a strike at all. In our opinion, the Tribunal must, in any event, look to the pleadings of the parties to find out the exact nature of the dispute, because in most Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 13 cases the order of reference is so cryptic that it is impossible to cull out therefrom the various points about which the parties were at variance leading to the trouble. In this case, the order of reference was based on the report of the Conciliation Officer and it was certainly open to the Management to show that the dispute which had been referred was not an industrial dispute at all so as to attract jurisdiction under the Industrial Disputes Act. But the parties cannot be allowed to go a stage further and contend that the foundation of the dispute mentioned in the order of reference was non-existent and that the true dispute was something else. Under s. 10(4) of the Act it is not competent to the Tribunal to entertain such a question.
19. In our opinion, therefore, the Tribunal had to examine issues 3 and 4 on the basis that there was a strike at the D.C.M. unit and a sit-down strike at Swatantra Bharat Mills and that there was a lock-out declared with regard to the former as stated in the third term of reference. It was for the Tribunal to examine the evidence only on the question as to whether the strikes were justified and legal. It then had to come to its decision as to whether the workmen were entitled to the wages for the period of the lock-out in the Delhi Cloth Mills and for the period of the sit-down strike at the Swatantra Bharat Mills."
In view of the above observsations, submission of the counsel that the reference itself was not maintainable and the application was rightly decided and that it was a case falling under Section 2(oo)(bb) sub-clause (a) of the Act of voluntary retirement cannot be accepted. That under Section 10(4) of the Act, the Labour Court is to decide the point of dispute and to confine its adjudication to those points and the matters incidental thereto. Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 14 Section 10(4) of the Act reads thus:-
"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."
Thus, in the present case, what was to be decided was a mixed question of fact and law as to in what circumstances the VRS was entered into and whether it was under coercion or not. This could not have been done without examining the evidence on record and taking into consideration the documents. The short cut thus resorted to by the Labour Court which proceeded to decide the lis in a summary manner cannot but be held to be irregular procedure adopted by the Labour Court where, it has apparently failed to exercise the jurisdiction vested in it by law.
The argument of counsel for the respondent-management is that the petitioner-workman was estopped from challenging the VRS is justified to an extent but the Court is of the opinion that, as noticed above, the issue of estoppel would come into play only if it is found by the Labour Court that the VRS was entered voluntarily by the workman and he was not forced and coerced into the same.
Gyanendra Sahay's case (supra) would not be applicable to the facts and circumstances of the present case as it was a case where the Labour Court had held that the appellant was entitled to relief of reinstatement in service with full back wages after the preliminary issue as to the maintainability of the reference was also raised before the Labour Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 15 Court, which was overruled by the Labour Court. It was in such circumstances, the Apex Court arrived at the conclusion that the appellant in his own handwriting had submitted the VRS on 01.04.1995 and held that the Labour Court's findings were not supported by acceptable evidence.
Similarly, Maruti Udyog Ltd.'s case (supra) was where the VRS was challenged after a period of 2-1/2 years and the management challenged the reference by filing a writ petition which was allowed on the ground of delay and thus again the said judgment would not be applicable since in the present case, admittedly, the dispute was raised within a period of 1-1/2 months. Another factor which is to be taken into consideration is that not only the present workman is before this Court but as many as 15 are there and, therefore, it further goes on to show that the dispute is to be adjudicated upon on its proper perspective.
In Yugeshwar Kumar's case (supra), the issue of estoppel was also there in the writ petition and the Single Judge had declined to interfere on the ground that the workman had accepted the VRS and the dispute did not pertain to any proceedings where evidence was being recorded.
Similarly, the judgment in EID Parry (India) Ltd.'s case (supra), of a Division Bench of the Madras High Court would not be applicable since the dispute in the said case was that the Single Judge had directed that a reference should be made under Section 2-A of the Act since the Government had refused to refer the matter. The Division Bench allowed the appeal of management on the ground that the workman had not explained the circumstances under which he was coerced to opt for the scheme and the circumstances would go against him. Again, it was not a case where the matter was already referred by the Government to the Labour Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 16 Court, which has to adjudicate and decide the issue on merits.
In J.K. Cotton Spinning and Weaving Mills Company Ltd.'s case (supra), the issue was of resignation and whether it was voluntarily tendered and which was not referred by the State Government but subsequently referred and the dispute arose as to whether it was liable to be referred.
Similarly, in HEC Voluntary Retd. Employees Welfare Society's case (supra), a claim was made by the employees who had opted for the VRS and had retired between 01.01.1992 and 31.12.1996. In view of revision of pay scales, they filed a writ petition claiming certain rights and it was held that once the employee had opted to retire voluntarily he could not raise a claim for higher salary and, therefore, the facts would not be applicable to the present case.
Similarly in New India Assurance Company Ltd.'s case (supra), the employees had opted for the VRS and had sought to withdraw the same later. The writ petition was filed by them for reinstating them on the posts of Development Officers. It was accordingly held that in view of the binding nature of the scheme once opted for, the option could not be there to withdraw the same. Thus, the case law which is referred to by the respondent-management does not pertain to any such facts where the matter was already pending consideration and evidence was being led and, thus was wrongly relied upon by the Labour Court while allowing the application at that stage.
Counsel for the petitioner is well justified in submitting that the Labour Court wrongly relied upon Ramesh Chandra Sankla etc. vs. Vikram Cement Etc., 2009 Labour and Industrial Cases 47 to hold that the Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 17 workman was to deposit the amount if the VRS is to be challenged. In the said case, the facts would show that the employees had opted for VRS in 2001 and thereafter, they raised a dispute and the maintainability of which was objected to. The Labour Court rejected the prayer that the cases should be dismissed at the thresh hold and the company challenged the said order by approaching the Industrial Court where also the application was dismissed. The company then moved the Labour Court and requested to frame three additional issues which, however, rejected the prayer to decide those issues as preliminary issues. The company again approached the Industrial Court contending that the preliminary issues were legal issues. The said plea was rejected by the Industrial Court and also not interfered by the Single Judge of the High Court. The company challenged the said order and the Apex Court, while deciding on the maintainability of the claim petition, held that the Courts below did not commit any error in jurisdiction in not deciding the issue as to the maintainability of the claim petition as a preliminary issue. It was held as under:-
"64. In our considered opinion, in the present case, it cannot be said that the Courts below have committed any error of jurisdiction in not deciding the issue as to the maintainability of claim-petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues."
It was further held that once acceptance of scheme was not with free consent and could not be decided in the light of the said evidence and the orders of the Industrial Tribunal and the Single Judge were upheld. The relevant para reads thus:-
Gupta Shivani2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 18
"69. Apart from the fact that the provisions of Code do not stricto sensu apply to `industrial adjudication', even under the Code, after the Amendment Act, 1976, the normal rule is to decide all the issues together in a civil suit. In the case on hand, the contention of the workmen is that the acceptance of the scheme was not with free consent, and even otherwise they were not given all the benefits to which they were entitled under the scheme. Therefore, they continued to remain employees of the Company. The Labour Court felt that the controversy raised by the workmen can only be decided in the light of the evidence before it. The said decision has been confirmed by the Industrial Court as well as by the learned Single Judge. We find no illegality in this approach which deserves interference under Article 136 of the Constitution. We, therefore, see no substance in the contention of the Company.
The question of option for retirement whether it was voluntary or not was also not gone into since the proceedings were pending before the Labour Courts and the said proceedings before the Apex Court were only against interlocutory orders. It was held that any observation would prejudice the case of either of the parties. The directions of the High Court in the intra court appeals before the matter finally reached the Apex Court regarding the refund of amount while raising challenge to the VRS scheme was, however, upheld on the ground that the workman could not have best of both the worlds.
In the present case, there is no reference whether any such application was filed by the management and, therefore, the reliance of the Labour Court upon the said observations was without any basis.Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 18216 of 2011 19
Accordingly, keeping in view the above facts and circumstances, this Court is of the opinion that it is necessary to interfere under Article 226 of the Constitution of India and set aside the impugned order and resultantly remand the matter to the Labour Court. A further direction is given that the Labour Court should decide the issue on merits keeping in view the observations made herein that it has to adjudicate on the point referred and the matters incidental thereto. The Labour court having not decided the issue on merits, has failed to exercise jurisdiction and not followed the proper rules or procedure and a failure of justice has occasioned. The error is an error of law apparent on the face of the record as without examining depositions and the evidence, the issue as to whether the VRS ws voluntary or not could not have been decided in a summary manner which the Labour Court has opted to do.
Accordingly, the writ petition is allowed. The matter is remanded to the Labour Court, Faridabad to decide the reference on merits.
However, nothing said herein shall be taken into account by the Labour Court while deciding the issue on merits, as the said observations are only for the decision of the present case at this stage. Since the dispute pertains to a large number of workmen who were affected, it would be appropriate if the matter is decided within a period of 4 months from the date of receipt of certified copy of the judgment.
A copy of the order be sent to the Labour Court, Faridabad for necessary compliance.
06.03.2014 (G.S. SANDHAWALIA)
shivani JUDGE
Gupta Shivani
2014.03.21 13:10
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CWP No. 18216 of 2011 20
Annexure 'A'
Sr. No. Case No. Parties Name
1. CWP No. 18216 of 2011 Khem Chand vs. M/s. Bhartia Cuttler
Hammer and another
2. CWP No. 18215 of 2011 Devender Yadav vs. M/s. Bhartia Cuttler Hammer and another
3. CWP No. 18217 of 2011 Dhanpati Goswami vs. M/s. Bhartia Industries Ltd. and another
4. CWP No. 18218 of 2011 Kalpati Devi vs. M/s. Bhartia Industries Ltd. and another
5. CWP No. 18219 of 2011 Ramayan Singh vs. M/s. Bhartia Industries Ltd. and another
6. CWP No. 18220 of 2011 Attar Singh vs. M/s. Bhartia Industries Ltd. and another
7. CWP No. 18221 of 2011 Chaman Lal vs. M/s. Bhartia Cuttler Hammer and another
8. CWP No. 18222 of 2011 Surinder Pal Singh vs. M/s. Bhartia Cuttler Hammer and another
9. CWP No. 18223 of 2011 Ashok Kumar vs. M/s. Bhartia Cuttler Hammer and another
10. CWP No. 18236 of 2011 Harpal Singh vs. M/s. Bhartia Industries Ltd. and another
11. CWP No. 18237 of 2011 Badam Singh vs. M/s. Bhartia Industries Ltd. and another
12. CWP No. 18194 of 2011 Om Parkash vs. M/s. Bhartia Cuttler Hammer and another
13. CWP No. 18198 of 2011 Sakloo Goswami vs. M/s. Bhartia Industries Ltd. and another
14. CWP No. 18199 of 2011 Arun Kumar vs. M/s. Bhartia Industries Ltd. and another
15. CWP No. 18201 of 2011 Sabhapati Goswami vs. M/s. Bhartia Industries Ltd. and another Gupta Shivani 2014.03.21 13:10 I attest to the accuracy and integrity of this document High Court Chandigarh