Calcutta High Court
Organon India Ltd. vs State Of West Bengal And Ors. on 29 April, 2003
Equivalent citations: (2003)3CALLT461(HC), (2004)ILLJ301CAL
Author: A. Lala
Bench: Amitava Lala
JUDGMENT A. Lala, J.
1. A very interesting question of law is involved in this matter which can be dealt with without any exchange of affidavits. Accordingly, the parties have accepted the position and wanted to argue at length. The main contesting parties are the petitioners (hereinafter called as the 'management') and the respondent No. 4 (hereinafter called as the 'workman'). The issues under the order of reference dated 5th March, 2002 are as follows:
"1) Whether the termination of service of Shri Samir Kr. Das with effect from 15.6.2001 by the management is justified?
2) What relief, if any, is Sri Das entitled to?"
2. According to Mr. Partha Sarathi Sengupta, learned senior counsel appearing for the 'management' the respondent No. 4 was never terminated from the service but he abandoned himself from rendering service of the 'management'. In such circumstances, if the appropriate government feels to refer the matter to the Industrial Tribunal the issues should be framed keeping rooms open for both the parties to get an appropriate adjudication on the basis of order of reference. It is well-settled that the Tribunal cannot proceed beyond the scope and ambit of the order of reference excepting the incidental questions connected therewith. The question of abandonment of service of the 'workman' cannot be construed as an incidental issue.
3. On the other hand, Mr. Madhusudan Dutta, learned counsel, appearing for the 'workman' contended that at this belated stage i.e. when the proceeding is pending before the Tribunal, the 'management' cannot raise this issue by invoking the writ jurisdiction. This question would have been decided by the Tribunal itself.
4. In reply, Mr. Sengupta contended that it is not the fact that 'management' has not taken the point before the Tribunal but the question lies elsewhere. The Tribunal will hear out the matter in the merit in respect of all the issues to satisfy the test and come to an appropriate conclusion. If the Tribunal ultimately held in favour of the 'management' on the above issue the 'workman' will be in a position to take the plea before the Writ Court thai the Tribunal, in passing such award, proceeded beyond the scope of reference. On the other hand, if the award is passed in favour of the 'workman', the situation would be as of now excepting the seal and signature of the Tribunal. When there is a question of nullity, the affected party is entitled to approach the Writ Court at any stage of the proceeding at the earliest. As the question of nullity can be challenged even after passing an order or award including the stage of execution, similar principle can also be applied during the pendency of the proceeding. In fact it applies at any stage of the proceeding because it touches the jurisdiction of the Tribunal.
5. Before going into the citations made by the learned counsels appearing for both the parties I have to test the scope and ambit of the Section 10(4) of the Industrial Dispute Act, 1947 which, according to me is being the nucleus of the controversy. As per Sub-section (4) where in an order referring an industrial dispute to a Labour Court or the 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.
6. The aforesaid underlined portion of the Sub-section (4) of Section 10 of the Act gives a clear impression that when a reference is made by the appropriate Government specifying any point of dispute for adjudication by the Tribunal, such Tribunal shall confine its adjudication to those points and maters incidental thereto. The word 'shall' is the guiding factor for the purpose of the adjudication by the Tribunal save and except the incidental matters. The Tribunal is a statutory Tribunal under the Act for the purpose of investigation and settlement of industrial disputes referred by the appropriate Government. Therefore, the scope and ambit of the adjudication is restricted unlike the Civil Courts having unfettered jurisdiction to settle the issues and go into the controversy in its own way. The Tribunal is guided by the issues framed by the appropriate Government. It cannot frame issues out of its own volition unless and until it is coming under four corners of the referred issues. At times. Civil Courts can construe some issues are hidden under an indispensable condition i.e. sine qua non but such scope is not open for the statutory Tribunal unless and until the hidden issues are hidden within the four corners of the referred issues. The issue as raised by the 'management' can not be said to be incidental issue.
7. Now I want to proceed one step further. There should be a clear understanding in respect of Rule 20D of the West Bengal Industrial Disputes Rules, 1958. Precisely, sub Rule (1) germane for the purpose is as follows:
"After the parties have filed their statements, the Industrial Tribunal/ Labour Court may fix a date for framing, if necessary the issues relating to and arising out of point or points in dispute, as referred, and matters incidental thereto, as well as additional or substantial issue, not enlarging in any way the scope of the points referred for adjudication on the merits, nor adding to their number but required for dealing with extrinsic contentions raised by the parties about the reference and for its hearing".
8. Firstly Rules can not override the statute. Secondly if such sub rule is read carefully it will be seen that the statutory Tribunal is not free in framing issues without following the aforesaid guidelines. Issues can be framed provided those are arising out of point in dispute, either incidental or additional or subsidiary but not enlarging the scope of the point for adjudication on the merits not adding to their number but with extrinsic contentions raised by the parties about the reference and for its hearing. Therefore, it is a confusing state of affairs. What would be the extrinsic contentions? Can it be said that the 'workman' abandoned himself from rendering service of the 'management' in extrinsic contentions? If such issue is framed does it not enlarge the scope of the point of adjudication on the merit? This is not an issue of termination simpliciter so that the extrinsic contentions arising out of the same can be adjudged. For an example Was the 'workmen' terminated from service? In such case there can be two possibilities and issue can be framed without enlarging the scope. But when termination by the 'management' is the issue then there is a prejudgment before reference about causing of termination by the 'management'. Hence, the extrinsic contention can not enlarge the scope of the reference on merit. Therefore, discussion can be made about the scope of reference before the Tribunal but the scope cannot be enlarged, suo motu, without getting further reference from the appropriate Government. In such circumstances an incidental question arose as to whether the Writ Court will enlarge the scope and send the matter to Tribunal or refer the matter back to the appropriate Government to reframe the issues and send it to the Tribunal as expeditiously as possible. According to me, it would not be appropriate for the Writ Court to fasten itself with such power but to refer the matter to the appropriate Government to clear up the position so that the tribunal can render substantial justice in all respects. Principles of unequal bargaining position cannot be the question of framing issues but for the justice.
9. Mr. Sengupta cited several decisions in favour of his case. Firstly, he cited a Division Bench judgment of this High Court reported in 1976(33) FLR 14 (Sabitri Motor Service Pvt. Ltd. v. State of West Bengal and Ors.) wherefrom I find that the referred question was "Is termination of service .... and .... justified?". The Tribunal proceeded with the fact whether the company had terminated the services of the workmen. The Division Bench came to the conclusion that the Tribunal, in fact, proceeded on the fact of termination but the question was about justifiability of the termination which the Tribunal overlooked. It is also important to note here that before the Division Bench the similar question arose where management not only denied the charge of termination of services of two employees but also specifically stated that both the employees of their own accord, left their services under the company. In 1989(59) FLR 677 (Punjab Khand Udyog Limited v. Labour Court, Bhatinda and Anr.) Punjab and Haryana High Court held that the order of reference of the similar nature postulates the existence of the order of termination. Calcutta High Court in 1994 Lab I C(NOC) 145 ( Britannia Industries Ltd. v. Eighth Industrial Tribunal and Ors.} of which the entire unreported judgment was placed before this Court held when the order of reference is a termination of service whether the very dispute is whether there is a termination of service or whether the employee submitted resignation voluntarily, the order of reference is liable to be struck down. In 1982 Lab I C 1309 ( India Tourism Development Corporation, New Delhi v. Delhi Administration, Delhi and Ors.) a Full Bendh of the Delhi High Court held when the order of reference is for entitlement to wages for a period of lockout the Tribunal cannot enlarge the scope of the jurisdiction and decide that there was a closure or not lockout. That would be deciding the foundation of the dispute mentioned in the order of reference. Such jurisdiction is not vested in the Industrial Tribunal. Again Punjab and Haryana held in 2001 (3) CLR 718 (All K.G. Khosla Karamchari Union (Regd.) Deepak Pheumatic Pvt. Ltd. INTUC Affiliated and Ors. v. State of Haryana and Ors.) that when the order of reference is strike the scope of the Tribunal is restricted on that score alone. In case there is an arguable point as to whether there was any strike at all an appropriate reference is to be made on that score. Supreme Court in 2001(1) CLR 29 (SC) (Moolchand Kharati Ram Hospital K. Union v. Labour Commissioner & Co.] held that when there is a reference whether the workmen are entitled to wages for the lock out period and the real dispute between the parties as to whether a lock out was presumed and the consequential question was referred but not the basic question the management is entitled for quashing the order under the writ jurisdiction of the Court.
10. In 2000(84) FLR 522(Del.)(AniI Kumar v. The Presiding Officer, Labour Court No. 2 and Anr.), Delhi High Court held that the appropriate reference should be in the circumstances "Whether .... has abandoned his services or his services have been terminated illegally and/or unjustifiable by the management and if so, to what relief is he entitled and what directions are necessary in this respect?". According to me, had there been the order of reference like above, there would not have any problem for the tribunal in hearing the matter in merit.
11. Therefore, from the ratio of the judgments referred as above it is crystal clear that the pre-dominant nature of the issue has to be taken into account for due consideration by the Tribunal and if it is not taken up it can be construed that the Tribunal exceeded its jurisdiction in hearing of order of reference. Incidental, additional or subsidiary issues can be available provided there is no enlargement of the scope of reference. In the instant case, the order of reference was wrong in terms of the dispute apparently. The nature of dispute is whether there was an abandonment of service by the workman or there was a termination of service by the management, illegally or unjustifiable? I fail to understand why the appropriate Government does so which can not give accommodation to both the parties. Social piece of legislation may sometimes go towards weaker section in deciding the merit but not making the order of reference. If it is done then obviously dispute will crop up in hearing such issue when the main matter would be delayed which ultimately frustrate the benefit of the weaker section in getting expeditious adjudication.
12. Mr. Dutta cited various judgements in support of his case. Firstly, he cited (The Delhi Cloth & General Mills Co. Ltd. v. The Workmen and Ors.). Although I have taken note of such ratio from the Division Bench judgment reported in 1976(33) FLR 14(supra) cited by the 'management' but I have to consider once again in the eyes of learned counsel appearing for the 'workman'. The Supreme Court held that the Tribunal must, in any event, look at the pleadings of the parties to find out the exact nature of the dispute, because in most 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. But I find even thereunder the Supreme Court held that whether there is any industrial dispute or not which attracts the jurisdiction of the Industrial Tribunal can be raised but 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 with the true dispute. Under Section 10{4) of the Act the Tribunal is not competent to entertain such a question.
13. Secondly, he cited (State of Madras v. C.P. Sarathy) to establish that at the time of making reference the Government is doing an administrative act and the fact that forming an opinion as to the factual existence of an industrial dispute is a preliminary step to the discharge of its function does not make it any less administrative in character. The Court cannot, therefore, canvas the order of reference closely to see if there was any material before the Government to support its conclusion as if it was a judicial or quasi-judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act and that, therefore, the Tribunal had no jurisdiction to make the award. But again in such judgment, I find the Supreme Court held if the dispute was an industrial dispute as denned in the Act its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of Jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.
14. He further cited (Management of Express Newspapers (Private) Ltd., Madras v. The Workers and Ors.) to establish that industrial Tribunal has its authority to examine a preliminary issue as to whether the dispute referred to is an industrial dispute or not and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may make, to that extent, the Writ Court should not interfere with the same unless and until the ward comes forward after considering such preliminary issue but, according to me, the question is different here. It is nobody's case as to whether any industrial dispute lies or not. The question is the order of reference should not be culled out in a manner which has not been referred by the appropriate Government.' Tribunal cannot convert the issue as per the desire of the management and come to an appropriate conclusion unless the scope of the reference is enlarged. If it is done the Tribunal will obviously make a jurisdictional error and in such case interference of the Writ Court will be justifiable.
15. Thereafter he cited a judgment reported in 1964(1) LLJ 351 (Bombay Union of Journalists and Ors. v. State of Bombay and Anr.) and contended the dispute in question raises question of law. The appropriate Government should not purport to reach a final decision on the said question of law, because it would normally lie within the jurisdiction of the Industrial Tribunal which is also similarly placed with the question of fact. Possibly the learned counsel wanted to say that the representative of the appropriate Government is the administrative authority, therefore, he can not justify the legality to which the domain lies with the Tribunal. According to me, there is no dispute about such proposition but the question lies with the result. If the result is obvious that the reference is not at par with the dispute, the reference will have to be returned to the appropriate Government to make out proper issues at par with the dispute and again return it to the Tribunal. Therefore, if any one comes forward before reaching its finality upon observing a glaring mistake, the Writ Court can Interfere at any stage of the proceeding for the purpose of shortening the time. Thereafter, again he cited a judgment reported 1978(1) LLJ 484 (Shambu Nath Goyal v. Bank of Baroda, Jullundur) at 486 to establish that it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit on appeal over the decision of the Government and come to a conclusion that there was no material before the Government. I find that this referable part of the judgment is helping the cause of the 'management' but not the cause of the 'workman' at all.
16. He lastly cited 1993(2) CHN 266 (Aviquipo of India v. State of West Bengal and Ors.) to establish that if the Interference is caused by the Writ Court it will cause injustice to the workmen as against the management who are not in equal bargaining position. I am sorry to say that such submission cannot be accepted on a question of framing issues and particularly when the 'management' itself took the pain of bringing the cause before the Writ Court during the pendency of the proceeding without waiting for final disposal giving clear explanation about the fate of the result either way. Therefore, such action on the part of the 'management' is tested as bonafide by the Writ Court. The Tribunal cannot substitute its view holding that there was an abandonment of service by the 'workman' in the place and instead of order of reference that termination of service by the management was Justified or not would have obviously been a jurisdictional error which is the basic issue of consideration by this Court.
17. Hence, balance of convenience will be subserved if the order of reference is striked out by giving direction upon the appropriate Government to refer the matter back keeping the rooms open for adjudication by the Tribunal in respect of abandonment of service vis-a-vis the termination by the management and that too within a specified period so that the Tribunal will be in a position to proceed with the substantial justice without any wastage of time as expeditiously as possible.
18. Thus, order of reference is striked out by this Court with a direction upon the tribunal to return the file to the appropriate Government to reframe the issues at par with the judgment and order passed by this Court within a period of one month from the date of communication of this order positively and send the matter to the Industrial Tribunal forthwith thereafter and in such case it is expected that the Tribunal will proceed as expeditiously as possible with this matter immediately after getting the order of reference without allowing unnecessary adjournments for the sake of justice.
Thus, the writ petition stands disposed of. No order is passed as to costs. But imposition of costs is reserved for the Industrial Tribunal in case of unnecessary adjournments are taken by the parties to delay the proceedings. However, it is recorded hereunder that this Court has not gone into the merit of the case.
Xeroxed certified copies of this judgment will be supplied to the parties within seven days from the date of putting the requisites for drawing up and completion of the order and certified copy of this judgment.