Gujarat High Court
Tata Chemicals Limited vs Okha Mandal Majoor Sangh & 2 on 25 April, 2017
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/12098/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12098 of 2016
With
SPECIAL CIVIL APPLICATION NO. 10649 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
TATA CHEMICALS LIMITED....Petitioner(s)
Versus
OKHA MANDAL MAJOOR SANGH & 2....Respondent(s)
==========================================================
Appearance:
SPECIAL CIVIL APPLICATION NO.12098 OF 2016:
MR.KM PATEL, SENIOR ADVOCATE WITH MR VARUN K.PATEL,
ADVOCATE for the Petitioner(s) No. 1
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR AMRESH N PATEL for
the Respondent(s)No.1.
MR GM JOSHI, ADVOCATE for the Respondent(s) No.2.
SPECIAL CIVIL APPLICATION NO.10649 OF 2016:
MR GM JOSHI, ADVOCTE for the Petitioner(s) No.1
Page 1 of 42
HC-NIC Page 1 of 42 Created On Wed Apr 26 00:42:35 IST 2017
C/SCA/12098/2016 CAV JUDGMENT
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR AMRESH N PATEL for
the Respondent(s)No.1.
MR.KM PATEL, SENIOR ADVOCATE WITH MR VARUN K.PATEL,
ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/04/2017
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. Rule. Learned advocates waive service of rule on behalf of their respective parties. With the consent of the learned advocates on both the sides, these matters are heard finally. Both these petitions are filed under Articles 226 and 227 of the Constitution of India by which the concerned petitioners have challenged the Award dated 31.12.2015 passed by Industrial Tribunal, Jamnagar in Reference (IT) No. 2 of 2012 (Old Reference No.188 of 1992).
2. Special Civil Application No.12098 of 2016 is filed by the principal employer (hereinafter referred to as the Company), whereas Special Civil Application No.10649 of 2016 is filed by the Contractor. As in both the petitions, the Award passed by the Tribunal is challenged, both Page 2 of 42 HC-NIC Page 2 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT the petitions are heard together and being disposed off by this common order. However, for the sake of convenience, the facts narrated in Special Civil Application No.12098 of 2016 are recorded, which read as under:
2.1. It is the case of the petitioner that petitioner is a Company incorporated under the provisions of the Indian Companies Act, 1913 and is engaged in manufacturing soda ash, salt and other chemicals. For manufacturing salt, which is also used as raw-material, the petitioner is required to pump in sea-water into salt works spread over vast area. The salt water is pumped in from three pumping stations situated at Khatumba, Kalyanpur and Pindara. There are 11 intermediate stations and a control point at Charakala. The work of operating pumps on the intermediate points is entrusted to the respondent No.2 - Contractor and the work performed by his workmen is only to operate the pump and maintain the flow of sea water. The workmen employed by the respondent No.2 -
Contractor are known as pump-men. The said Contractor employed 46 workmen. It is further the case of the petitioner that at the instance of the workmen employed by the respondent No.2 - Contractor, the charter of demand was raised for paying them the pay-scales of unskilled workmen Page 3 of 42 HC-NIC Page 3 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT as paid to unskilled workmen of the petitioner Company, special service increment on the basis of the length of service, payment of Dearness Allowance @ 100% of Ahmedabad Textile Industry, washing allowance and House Rent Allowance. The same was culminated in Reference to the Industrial Tribunal, Rajkot, which was registered as Reference No. 188/1992. However, thereafter it has been renumbered as Reference (IT) No.2/2012.
2.2. Before the Tribunal, the respondent No.1
- Union submitted the statement of claim. The petitioner as well as respondent No.2 filed their written statement. The petitioner mainly contended that reference was incompetent against the petitioner Company since there were no employer-employee relationship. It was also stated that the parity in pay-scale and other benefits claimed by the workmen was not tenable since comparison was sought with the company's workmen whose work and nature of duties were different and designation was also different. It was also stated that if the claim is based on same nature of work being performed by the Contractor's workmen as performed by the Company's workmen, the jurisdiction to decide the dispute vests with the Commissioner of Labour as per Condition No.5 of license issued in statutory form under the Contract Labour (Regulation & Page 4 of 42 HC-NIC Page 4 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT Abolition) Gujarat Rules, 1972 (hereinafter referred to as 'the Rules'). It was therefore stated that the Tribunal had no jurisdiction to decide the same.
2.3. The respondent No.2 - Contractor also filed written statement wherein also it was contended that the Tribunal had no jurisdiction to entertain the subject matter of reference. It was stated that the nature of work and duties of his workmen were not the same as performed by the Company's workmen and that he was paying minimum wages and could not afford to pay the pay-scales and other benefits as paid by the Company to its workmen. Before the Tribunal, the respondent No.1
- Union produced documentary evidence as well as examined four witnesses. On behalf of the petitioner Company, documentary evidences were produced and also one witness was examined. The respondent No.2 - Contractor also produced documentary evidence and Contractor also gave oral evidence.
2.4. The Tribunal, after conclusion of the proceedings, passed the impugned Award dated 31.12.2015 partly allowing the Reference by allowing all the demands except demand No.3 i.e. Dearness Allowance at the rate of 100% as per Page 5 of 42 HC-NIC Page 5 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT Ahmedabad Textile Industry. The direction was given to the respondent No.2 - Contractor to pay the same from the date of Reference.
2.5. The petitioner Company being aggrieved by the said award, though direction was given to the respondent No.2 - Contractor to make the payment, filed the present petition on the ground that the findings and observations recorded by the Tribunal in the award are highly prejudicial to the petitioner and it affects the petitioner since in view of the enormous burden involved due to impugned Award, it would not be possible for the petitioner company to get the work done through the contract system which is permissible and justified and not prohibited under Section 10 of the Contract Labour (Regulation & Abolition) Act, 1970 (hereinafter referred to as 'the Act of 1970').
2.6. The Contractor has also filed a separate petition as stated hereinabove challenging the said award.
3. Heard learned Senior Counsel Mr. K. M. Patel assisted by learned advocate Mr. Varun K. Patel for the petitioner Company, learned advocate Mr. G. M. Joshi for the Contractor and Page 6 of 42 HC-NIC Page 6 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT learned Senior Counsel Mr. Shalin Mehta assisted by learned advocate Mr. Amresh N. Patel for the respondent No.1 - Union.
3.1. Learned Senior Counsel Mr. Patel submitted that the Tribunal has no jurisdiction to entertain the reference because if the claim of the Contractor's workmen for grant of same wages as is paid to principal employer's workers is based on the same nature of work, the jurisdiction to decide dispute regarding nature of work being same is with the Commissioner of Labour as per condition No.5 of license in statutory form prescribed under the Rules. It is submitted that since the Commissioner of Labour is specifically conferred with the jurisdiction to decide such dispute, the jurisdiction of the Tribunal under the Industrial Tribunal Act, 1947 (hereinafter referred to as the I.D. Act) is impliedly barred. In spite of that, the Tribunal has not properly appreciated the aforesaid important aspect of the matter and wrongly placed reliance upon the provisions of item-7 of third schedule of I.D. Act.
3.2. Learned Senior Counsel Mr. Patel thereafter would contend that as per condition No.5 of license issued under the Rules, if there Page 7 of 42 HC-NIC Page 7 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT is a dispute regarding nature of work being the same or similar, such dispute is required to be decided by the Commissioner of Labour. Since there is a specific provision conferring the jurisdiction regarding the subject matter of dispute on the Labour Commissioner under the statutory Rules framed under the Act, the Tribunal has no jurisdiction to decide the same.
3.3 It is further submitted that the contention of the petitioner before the Tribunal that Reference against the petitioner Company was not maintainable was based on the fact that the workmen concerned in the Reference were workmen of the Contractor and not of the petitioner. Thus, when there is no employer-employee relationship between the petitioner Company and the workmen concerned in the Reference, the dispute against the petitioner was not maintainable. Thus, this is the jurisdictional fact which goes to the root of the matter and therefore it was incumbent on the Tribunal to decide the same in order to decide the Reference on merits against the petitioner Company.
3.4. Learned counsel Mr. Patel thereafter submitted that it was not the case of the respondent No.1 - Union in the demand that the Page 8 of 42 HC-NIC Page 8 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT contract issued by the petitioner Company is not genuine and is a paper arrangement. In fact, the Reference itself proceeded on the footing that concerned workmen were workmen of the Contractor and not of the petitioner Company. In spite of this, the Tribunal has travelled beyond the terms of Reference by holding that the contract is sham and bogus. Thus, the Tribunal has gone beyond the terms of Reference and therefore the impugned award passed by the Tribunal be set aside.
3.5. Learned Senior Counsel Mr. Patel submitted that the Tribunal has failed to appreciate and consider the financial implications of the Award passed by it. All the demands except demand No.3 are allowed by the Tribunal from the date of Reference which was made way back in the year 1992. The Award involves enormous and crippling burden on respondent No.2 - Contractor, who in his written statement and evidence has stated that he was unable to bear the financial burden involved if the demands are accepted. The Tribunal's award granting relief for a period of almost 25 years without considering the financial implications shows complete non-application of mind. Therefore, on this ground also, the award passed by the Tribunal be set aside.
Page 9 of 42HC-NIC Page 9 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT 3.6. Learned Senior Counsel Mr. Patel thereafter submitted that the impugned award holding the nature of work performed by the workmen of the respondent No.2 - Contractor being the same as performed by the Company's workmen, is based on the alleged report Exhibit 115 of the Government Labour Officer (GLO). It is submitted that the Tribunal has wrongly placed reliance upon the said report. In the said report, it was merely stated that pursuant to the complaint, the said officer visited the establishment on 26.02.1991 along with the Assistant Commissioner of Labour where he had prima facie found that the work performed by the Contractor's workmen was similar as performed by the Company's workmen. The said report is cryptic and the nature of duties performed by two sets of workmen were not considered in detail. At this stage, it is pointed out that in the said report, it was only requested to the Commissioner of Labour to initiate appropriate proceedings for deciding the dispute since the said authority is having the jurisdiction to decide the same as per condition No.5 of license. Thus, the said report could not have been treated as binding and conclusive proof of the fact that the nature of work performed by the Contractor's workmen were same as performed by the petitioner's workmen. It is also stated at Page 10 of 42 HC-NIC Page 10 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT this stage that said report has been prepared ex- parte without notice to the Contractor and the petitioner. Thus, such report could not have been relied on by the Tribunal. It is, therefore, submitted that impugned Award be quashed and set aside.
3.7. Learned Senior Counsel Mr. Patel has placed reliance upon the following decisions:
1.B.H.E.L.Workers' Association, Hardwar and others V/s Union of India and Others reported in AIR 1985 SC 409
2.Hindustan Paper Corporation Ltd. V/s Kagajkal Thikadar Sramik Union and others, reported in (2008) 2 SCC 545.
3.Oshiar Prasad and others v/s Employers in Relation to Management of Sudamdih Coal Washery of M/s BharatCoking Coal Limited, Dhanbad, Jharkhand, reported in (2015) 4 SCC 71.
4.Shri Vimal Kishor Shah & Ors. V/s Mr.Jayesh Dinesh Shah & Ors., reported in (2016) 8 Scale
5.Workmen of the Gujarat Electricity Board, Baroda V/s Gujarat Electricity Board, Baroda reported in AIR 1970 SC 87 Page 11 of 42 HC-NIC Page 11 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT
6.Uttar Pradesh Rajya Vidyut Utpadan Board and Another v/s Uttar Pradesh Vidyut Mazdoor Sangh reported in (2009) 17 SCC 318
7.Panki Thermal Power Station & Ors. V/s Vidyut Mazdoor Sangathan & Ors, reported in (2009) 11 SCC 277.
8.Institute of Rural Management V/s N.D.D.B.Employees' Union Through Secretary & Ors., reported in 2011 (3) GLR 2360.
4. Learned advocate Mr. G. M. Joshi appearing for the respondent No.2 - Contractor assailed the Award passed by the Tribunal on the ground that condition No.5 of License issued under the Act, confers jurisdiction on the Commissioner of Labour to decide whether the workmen were paid less amount in the event of the work being performed by them was similar as performed by the regular employees of the Company and therefore Tribunal has no jurisdiction to entertain the dispute. In fact, no demand to grant the benefits as per the benefits given to the employees of the Company was referred to the Tribunal. He submitted that Tribunal has travelled beyond the terms of the demand and therefore the Award passed by the Tribunal is required to be set aside. At this stage, it is also contended that while issuing the direction, Page 12 of 42 HC-NIC Page 12 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT the Tribunal ought to have considered the paying capacity of the Contractor. In fact, the Contractor is paying minimum wages to his workmen and therefore the Tribunal ought not to have issued the directions to the Contractor to make the payment from the date of Reference.
5. Learned Senior Counsel Mr. Shalin Mehta appearing for the respondent No.1 - Union has supported the reasonings recorded by the Tribunal. He has submitted that neither the petitioner Company nor the Contractor has challenged the order whereby the dispute was referred to the Tribunal and therefore at this stage they cannot take the contention that Tribunal has no jurisdiction. Learned counsel referred to the deposition given by GLO as well as the other witnesses and submitted that Tribunal has not committed any error while passing the impugned award. Learned counsel thereafter referred to third schedule of I. D. Act and more particularly referred to Clause 1, which provides that `Wages, including the period and mode of payment'. Thereafter he referred to the definition of `wages' given in Section 2(rr) and submitted that the Tribunal has jurisdiction. However, merely because the Tribunal has referred to wrong provisions i.e. Clause Nos.7 and 11 of Page 13 of 42 HC-NIC Page 13 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT third schedule, it cannot be said that Tribunal has no jurisdiction.
5.1. Learned Senior Counsel Mr. Mehta thereafter submitted that Rule 25 of the Rules and Form No.VI apply to the dispute between the employer and the Contractor. The respondent No.1
- Union was not a party to the license issued in favour of the company. He further submitted that the I.D. Act is a primary legislation, whereas the Act of 1970 cannot prevail over the primary legislation and therefore the Tribunal is having jurisdiction to entertain the Reference referred to it. However, at this stage, learned Senior Counsel has fairly admitted that no reference was made to the Tribunal with regard to the issue; whether the contract given to the respondent No.2 - contractor is sham or bogus. However, the Tribunal has not decided the said issue but while considering issue No.1 certain observations were made by the Tribunal. It is submitted that the Tribunal was aware of the dispute which is referred to it and while deciding the said issues, passing observations are made by the Tribunal and therefore it cannot be said that the Tribunal has travelled beyond the scope of the reference.
Page 14 of 42HC-NIC Page 14 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT 5.2. Learned Senior Counsel Mr. Mehta thereafter submitted that the scope of judicial review while exercising the powers under Article 226 and 227 of the Constitution of India by this Court is very limited. This Court cannot re- appreciate and reconsider the entire evidence. This Court can entertain the petition if it is a case of no evidence. However, in the facts of the present case and looking to the evidence produced before the Tribunal, it cannot be said that this is a case of no evidence.
5.3. Learned counsel further submitted that that strict rule of evidence would not be applicable in the proceedings before the Tribunal and as the I.D. Act is a beneficial legislation, liberal interpretation is required to be made.
5.4. In support of the aforesaid contentions, learned counsel Mr. Mehta has placed reliance upon the following decisions:
1.Union of India and Others v/s P.Gunasekaran reported in (2015) 2 SCC 610
2.Nirmala J Jhala V/s State of Gujarat and Another reported in (2013) 4 SCC 301
3.Metro Goldwyn Mayer (India) Ltd. V/s Its workmen (film Distributors Employees' Association and another, reported in 1964 II LLJ 287 Page 15 of 42 HC-NIC Page 15 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT
4.General Manager, Oil and Natural Gas Commission, Silchar V/s Oil and Natural Gas Commission Contractual Workers Union reported in (2008)12 SCC 275.
6. Having heard learned counsel for the parties and having gone through the material placed on record and the decisions relied on by learned advocates, it transpires that the Deputy Labour Commissioner made reference to the Industrial Tribunal, Jamnagar to decide and adjudicate the dispute in connection with the matter indicated in the schedule. Five demands were referred in the schedule which read as under:
"(1) Whether the skilled workman (Pumpman) should be paid daily Rs.12.10 plus D.A.Rs.39.80 as revised from time to time or not?
Whether the unskilled workman should be paid the salary as per the standard or not? The pay scales of the skilled workman (Pumpman) and unskilled workman are functional. By deciding the pay scale accordingly, whether the skilled workman (Pumpman) and the unskilled workman are to be included in the pay scale or not?
2) Whether the skilled workmen and the unskilled workmen should be given increment or not? Whether such increment should be given on the 1st of January of every year or not? Whether the fitment in the respective pay scale should be given by giving two increment to those who are having service of 2 to 5 years and four increments to those who are having the service of 5 to 8 years or Page 16 of 42 HC-NIC Page 16 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT not?
3) Whether the dearness allowance each month to each skilled workman (Pumpman) and unskilled workman according to Ahmedabad Textile should be given or not?
4) Whether the washing allowance at the rate of Rs.10.00 per month should be given or not?
5) Whether each skilled workman unskilled workman should be paid each month the house rent allowance of Rs.10/- or not?"
7. Though five demands were referred in the Schedule, in the Statement of Claim, the Union raised 14 demands. The Company as well as the Contractor submitted the written statement and the Tribunal, after considering the oral as well as documentary evidence produced before it, partly allowed the Reference, whereby all the demands except demand no.3 as per the Schedule are allowed and the Contractor is ordered to make the payment as per the said demand within stipulated time limit from the date of Reference. The Tribunal also ordered to pay the revision of such demands from time to time while ensuring that the same shall not be less than the respective benefits which are being paid to the employees of the Company.
8. On behalf of the petitioners, mainly it has been contended that the Tribunal has no jurisdiction to decide the dispute because if the claim of the contractor's workmen is for grant of same wages as paid to the workers of the Company, Page 17 of 42 HC-NIC Page 17 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT the jurisdiction is with the Commissioner of Labour as per condition no.5 of Licence Agreement. The contention of the petitioners is that the Tribunal has gone beyond the terms of the Reference by making an observation that the contract entered into between the Company and the Contractor is sham and bogus. The third contention of the petitioners is that the Tribunal has not considered the financial capacity of the employer while giving direction to pay the same wages as is being paid to the workmen of the Company. The Tribunal ought to have considered the paying capacity of the Contractor.
9. Whereas the Union has raised the contention that the scope of judicial review while exercising the powers by this Court under Article 227 of Constitution of India is very limited. The contention of the Union is that the Company or the Contractor has not challenged the order of the Commissioner, whereby dispute was referred to the Tribunal and Rule 25 of the Rules and Form No.VI apply to the dispute between the Employer and the Contractor. Thus, the Tribunal has jurisdiction to entertain the Reference under third schedule of I.D. Act.
10. To appreciate the aforesaid contentions, Page 18 of 42 HC-NIC Page 18 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT relevant provisions of the ID Act, Act of 1970, Rules of 1972 are required to be examined. Rule 2(rr) of the I.D.Act defines the word `wages' which provides that:
"2(rr) "wages" means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to:
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles;
(iii) any travelling concession;
(iv) any commission payable on the promotion of sales or business or both;] but does not include-
(a) any bonus;
(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service;]"
11. The third schedule of ID Act provides for which type of matters fall within the jurisdiction of Industrial Tribunals. It provides as under:
"MATTERS WITHIN THE JURISDICTION OF INDUSTRIAL TRIBUNALS Page 19 of 42 HC-NIC Page 19 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT
1. Wages, including the period and mode of payment;
2. Compensatory and other allowances;
3. Hours of work and rest intervals;
4. Leave with wages and holidays;
5. Bonus, profit sharing, provident fund and gratuity;
6. Shift working otherwise than in accordance with standing orders;
7. Classification by grades;
8. Rules of discipline;
9. Rationalisation;
10. Retrenchment of workmen and closure of establishment; and
11. Any other matter that may be prescribed."
12. Rule 25 of Rules of 1972 provides that every licence under Rule 23 shall be in Form VI. Form VI provides for grant of licence. However, licence is subject to certain conditions enumerated in the said form. Condition no.5 of the same provides as under:
"5. In cases where the workmen employed by the contractor perform the same kind of work as the workmen directly employed by the principal employer of the establishment, the wage rate, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as the applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work.
Provided that in the case of any disagreement with regard to the type of work the same shall be decided by the Deputy Labour Commissioner whose decision shall be final."Page 20 of 42
HC-NIC Page 20 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT
13. At this stage, the decisions upon which the reliance is placed by learned counsels for the parties are also required to be referred and considered. In the case of B.H.E.L.Workers' Association, Hardwar and others (supra), the Hon'ble Supreme Court has held in paragraph 6 as under:
"6. Thus we see that no invidious distinction can be made against contract labour. Contract labour is entitled to the same wages, holidays, hours of work and conditions of service as are applicable to workmen directly employed by the principal employer of the establishment on the same or similar kind of work. They are entitled to recover their wages and their conditions of service in the same manner as workers employed by the principal employer under the appropriate Industrial and labour Laws. If there is any dispute with regard to the type of work, the dispute has to be decided by the Chief Labour Commissioner (Central). It is clear that Parliament has not abolished contract labour as such but has provided for its abolition by the Central Government in appropriate cases under sec. 10 of the contract Labour (Regulation and Abolition) Act, 1970. It is not for the court to enquire into the question and to decide whether the employment of contract labour in any process, operation or other work in any establishment should be abolished or not. This is a matter for the decision of the Government after considering the matters required to be considered under sec. 10 of the Act. Similarly the question whether the work done by Contract labour is the same or similar work as that done by the workmen directly employed by the principal employer of any establishment is a matter to Page 21 of 42 HC-NIC Page 21 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT be decided by the Chief Labour Commissioner under the proviso to Rule 25 (ii) (v) (a). In these circumstances, we have no option but to dismiss both the writ petitions but with a direction to the Central Government to consider whether the employment of contract labour should not be prohibited under sec.
10. of the Act in any process, operation or other work of the BHEL, Hardwar. There will also be a direction to the Chief Labour Commissioner to enquire into the question whether the work done by the workmen employed by the contractors is the same type of work as that done by the workmen directly employed by the principal employer in the BHEL, Hardwar."
14. In the case of Panki Thermal Power Station and another(supra), the Hon'ble Supreme Court has observed and held in paragraph 10 as under:
"10. The Commissioner failed to consider the difference between the labour contract and the job contract. The labour contract is entered for supply of labour and the labour so supplied work under the directions of the employer whereas in the present case the work was given like coal handling and cleaning to the contractor for a lump sum amount for a certain period. Neither the number of employees was fixed nor were they under the control of the appellants. Therefore, Rule 25 has no application."
15. In the case of Oshiar Prasad and Others (supra), the Hon'ble Supreme Court has observed and held in paragraph 18 to 22 as under:
Page 22 of 42HC-NIC Page 22 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT "18. One of the questions which fell for consideration by this Court in Delhi Cloth and General Mills Co.Ltd. v.Workmen 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: "(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 Section. 10(4):
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 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 Page 23 of 42 HC-NIC Page 23 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT 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 Pandhayat v.Perfect Pottery Co.Ltd., Justice Y.V. Chandrachud - the learned Chief Justice speaking for the Court laid down the following proposition of law:
"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 Page 24 of 42 HC-NIC Page 24 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT 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 the management. The references [pic]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 Firestone Tyre & Rubber Co.of India (P) Ltd v.Workmen, National Engg.Industries Ltd. v.State of Rajasthan, Mukand Ltd. v.Staff & Officers' Assn. And State Bank of Bikaner & 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 Page 25 of 42 HC-NIC Page 25 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT while answering the reference."
16. In the case of Institute of Rural Management (supra), the learned Single Judge of this Court held that the Labour Court having derived its jurisdiction from the terms of Reference was bound to act within four corners of reference. It is further held that finding of fact recorded by the Tribunal that contract labour system employed in petitioner establishment is sham and bogus is beyond the terms of the reference and therefore without jurisdiction.
17. In the case of Gopal and Others (supra), the Division Bench observed and held in paragraphs 25 to 28 as under:
"25. The next question which arises for consideration is - whether the issue as to "whether the contracts between the respondent and the security agencies were sham or camouflage" was referred by the Central Government to the learned CGIT. We have referred to the pleadings of the parties and find that the issue as to whether the contract between the respondent and the security agencies was sham/camouflage neither arose out of the pleadings nor it was referred by the Central Government to the learned CGIT. The case of the appellant in the notice of demand as well as the claim statement was that the appellant joined the respondent in July 1994 on the post of Guard at a monthly salary of Rs.2,650/- per month Page 26 of 42 HC-NIC Page 26 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT and was terminated on 1st September, 2002 without any written order. The respondent‟s case was that they never employed the appellant and there was no employer-employee relationship between the parties. It was further pleaded that since there was no relation of employer-employee, the question of termination would not arise. There is no averment either in the notice of demand or the claim statement that the contract between the respondent and the security agencies was sham and camouflage. The reference of the Central Government is clear as to whether the termination of appellant was just and legal. The reference further clearly records that the appellant had been employed through the security contractors but no reference was made as to the legality of the contract between the respondent and the contractors.
26. In Mukand Ltd. v/s Mukand Staff & officers (supra) , the Supreme Court held that the Labour Court cannot travel LPA No.408/2013 with other connected matters Page 15 of 24 beyond the terms of the reference. Relevant portion of the judgment is reproduced as under:
"36. We, therefore, hold that the reference is limited to the dispute between the Company and the Workmen employed by them and that the Tribunal, being the creature of the reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference."
27. With respect to the appellants‟ contention that even if the question relating to the validity of the contract between the respondent and the service contractors was not referred by the Central Government to the learned CGIT, the Industrial Tribunal had jurisdiction to consider the issue. We do not agree with this submission in view of the Page 27 of 42 HC-NIC Page 27 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT judgment of Ashok Kumar v. State (supra) in which this Court held that the Labour Courts / Tribunals cannot travel beyond the term of reference. This Court further held that if no reference has been made to the Labour Court for determining whether the contract was sham or camouflage, the Labour Court could not have entered into this issue to hold that the contract was sham and camouflage. Relevant portion of the said judgment is reproduced hereunder:
"5. I consider that this argument of the counsel of the petitioner must fail. The petitioners, before Conciliation Officer as well as before the appropriate Government, did not raise any dispute about the contract being sham and camouflage. They rather claimed that they were direct employees of the management and did not claim that they were employees of the contractor. It is now settled law that where the workmen claim that the contract between principle employer and contractor was sham and LPA No.408/2013 with other connected matters Page 16 of 24 camouflage, they have to raise an industrial dispute to that effect and it is industrial adjudicator who, after going through the evidence and the terms and conditions of the contract and other circumstances has to decide whether the contract between principal employer and the contractor was sham and camouflage. If the Industrial Adjudicator comes to conclusion that the contract was sham and camouflage, the industrial adjudicator can order the absorption of the workman by the principal employer. Similarly in a case where the workman considered that though they were contractor's employees but the contract labour system should be abolished, they have to approach the appropriate Page 28 of 42 HC-NIC Page 28 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT Government under Section 10 of the CLRA Act and it is the jurisdiction of the appropriate Government to consider the demand of the workman and after taking into account the parameters, as laid down under Section 10 of the CLRA Act, issue a notification of abolition of the contract labour system in the industry/establishment in respect of specific jobs. The Tribunal or the High Court cannot exercise powers under Section 10 of the CLRA Act. This power vests with the Government."
"7. It is obvious that the workmen in this case did not raise correct dispute and did not approach the appropriate Government with the contentions that the contract was sham and camouflage or that the contract labour system should be abolished. They got referred a dispute that they were the employees of the management and were not being regularized. This claim was found false. The Labour Court had no alternative but to dismiss the claim. It is settled law that the Labour Courts/Tribunals cannot travel beyond the term of reference. If no reference had been made to the Labour Court for determining whether the contract was sham and camouflage, the Labour Court could not have entered into this issue and decided whether the contract was sham and camouflage."
(Emphasis supplied)
28. In Chhathoo Lal v.Management of Goramal Hariram Ltd. (supra), this Court again held that since the workmen had not raised the contention that the contract between the management and the contractor was sham, Labour Court could not have gone into the question. This Court Page 29 of 42 HC-NIC Page 29 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT further held that the Labour Court is a creation of the reference and therefore, cannot go beyond the terms of the reference. Relevant portion of the said judgment is as under:
"8. In the present case the workman had not raised any contention that the contract entered into between the contractor and the management was a sham. In fact the contention of the workman was that he was an employee of the respondent. The Labour Court could not have gone into the question whether the contract was sham or not because no such reference was made to the Labour Court. The reference made to the Labour Court was that whether the services of the petitioner were illegally terminated or not and the contention of the petitioner was that he was a direct employee of the respondent. I consider that the petitioner should have initially raised a proper dispute. He should have come up with clean hands and submitted that he was an employee of the contractor and the contract should be declared as sham and camouflage and he should be considered as an employee of the principal employer. He did not disclose the true facts and taking a false plea stood in the way of referring the proper dispute to the Labour Court. It is settled law that the Labour Court is a creation of the reference and the Labour Court cannot go beyond the terms of reference except that the questions incidental to the dispute and those, who go to the root to the jurisdiction of Labour Court can be decided by the Labour Court while deciding a reference.
9. The contention of the counsel of petitioner that the Labour Court could Page 30 of 42 HC-NIC Page 30 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT not have gone into the questions of LPA No.408/2013 with other connected matters Page 18 of 24 relationship of employer- employee does not stand the scrutiny of law. The issue of relationship of employer- employee goes to the root of the jurisdiction of the Labour Court and is incidental to the issue raised by the petitioner that he was illegally terminated by the respondent. If he was not an employee of the respondent there could have been no question of his illegal termination the question of his illegal termination would arise only if he was an employee of the respondent.
10. In A.P.SRTC and Others v.G.Srinivas Reddy and Others, 2006-II-LLJ-425 (SC), Supreme Court held that if the respondents wanted the relief of absorption they will have to approach the Industrial Court and establish that the Contract Labour System was only a ruse/camouflage to avoid labour law benefits to them. Where the workmen do not approach the Court with correct reference and true facts, workmen cannot later on turn around and say that now they should be considered as workmen through the contractor and they should be deemed to be the employees of the management because contract was sham and camouflage."
(Emphasis supplied)
18. In the case of Workmen of the Gujarat Elecricity Board, Baroda (supra), the Hon'ble Supreme Court has held in paragraph 4 as under:
"4. The main ground for rejecting these Page 31 of 42 HC-NIC Page 31 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT demands, on which the Award is based, is that the Board does not have the capacity to meet the additional expenditure that would have to be incurred if these demands are acceded to Before the Tribunal, this aspect of the case was sought to be met by the Sangh by urging that the total wage packet, including the dearness allowance claimed by them in the demand, would only satisfy the requirement of a minimum wage, so that the Board's capacity to pay was irrelevant; but the award shows that- the Sangh completely failed to provide any material to prove that the total wages, including the dearness allowance as offered by the Board on the basis of the settlements, are less than the minimum wage. This Court, in Hindustan Antibiotics Ltd. v.The Workmen, 1967-1 SCR 652 = (AIR 1967 SC 948) recognised the three concepts of minimum wage, fair wage, and living wage by quoting the following passage from the decision in Hindustan Times Ltd.New Delhi v.Their Workmen 1964-1 SCR 234 = (AIR1963 SC 1332), and stating that it briefly and neatly defined the three concepts : "In trying to keep true to the two points of social philosophy and economic necessities which vie for consideration, industrial adjudication has set to itself certain standards in the matter of wage fixation. At the bottom of the ladder, there is the minimum basic wage which the employer of any industrial labour must pay in order to be allowed to continue an industry. Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is "adequate to cover the normal needs of the average employee regarded as a human being in a civilised society". Above the fair wage is the "living wage"-a wage 'which will maintain the workman in the highest state of industrial efficiency, which will enable him to provide his family with all the material things which are needed for their health and Page 32 of 42 HC-NIC Page 32 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT physical well-being, enough to enable him to qualify to discharge his duties as a citizen."
These decisions make it clear that, if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to continue the industry; and, in such a case, the capacity of the industry to pay is irrelevant. However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity of the industry to pay is a very important factor, and the burden above the minimum wage can only be justifiably imposed if the industry is capable of meeting that extra burden. On this principle, in the present case, if the appellants had succeeded in showing that they were not receiving even the minimum wage on the basis of the offer made by the Board in line with the settlements arrived at with the other Unions- and individual workmen members of the Sangh, there would have been full justification for granting additional dearness allowance, ignoring the inability of the Board to meet that extra expenditure. The finding of the Tribunal, however, is that the demand of the workmen is not confined to minimum wage, but that, as a result of the demand, the wages will be above the minimum wage. Learned counsel appearing for the appellants before us did not try to contend that the wages which were being paid by the Board, were lower than the minimum wage, so that the claim for the additional dearness allowance cannot be considered without taking into account the capacity of the Board to meet the expenditure."
19. In the case of P.Gunasekaran (supra), the Hon'ble Supreme Court has observed in paragraph 15 as under:
Page 33 of 42HC-NIC Page 33 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT "15. In State of A.P.v. Chitra Venkata Rao, the principles have been further discussed at paras 21 to 24, which read as follows:
"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P.v.S.Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or Page 34 of 42 HC-NIC Page 34 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
22. Again, this Court in Railway Board v.Niranjan Singh said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the Page 35 of 42 HC-NIC Page 35 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT disciplinary authority should prevail and the High Court should not have interfered with the conclusion.[pic]
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.(See Syed Yakoob v. K.S. Radhakrishnan).
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned Page 36 of 42 HC-NIC Page 36 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
20. In the case of Nirmala J Jhala (supra), the Hon'ble Supreme Court has observed in paragraph 22 as under:
"22. It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidence as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings."
21. Similar view is taken by the Hon'ble Supreme Court in the case of General Manager, Oil and Natural Gas Commission, Silchar (supra).
22. Keeping in mind the aforesaid provisions of law as well as the decisions rendered by the Page 37 of 42 HC-NIC Page 37 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT Hon'ble Supreme Court as well as this Court, if the facts as discussed hereinabove are examined, it is revealed that the Deputy Labour Commissioner has referred the dispute to the Industrial Tribunal, Jamnagar wherein five demands raised by the Union are mentioned in the schedule and the said order of Reference was not challenged by the Company or the workmen. If the schedule referred to the Industrial Tribunal is carefully examined, there is no reference in the said schedule that the Union has demanded a particular amount on the basis of the amount paid to the workmen of the Company. There is only reference with regard to payment of Rs.12.10 daily with amount of DA of Rs.39.80 as revised from time to time to the skilled workmen (pumpmen). Similarly, such other demands were also made by the Union which has been referred to the Tribunal under the Schedule. Further, there is no reference with regard to the allegation that the contract entered into between the Company and the Contractor is sham and bogus. Further, from the Schedule referred to the Tribunal, it cannot be said that there is any reference with regard to the similar type of work performed by the workmen of the Contractor and principal employer and there is no reference with regard to disagreement with the type of work performed by the workmen employed by the Page 38 of 42 HC-NIC Page 38 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT contractor as well as principal employer.
23. In view of the above, we are of the view that the contention of the petitioners that the Tribunal has no jurisdiction to entertain the Reference in view of condition no.5 of licence as per Form No.VI of Rule 25 of Rules of 1972 is misconceived. Further, in view of definition of `wages' provided under Section 2(rr) read with clause (i) of the third schedule of ID Act, we are of the considered opinion that the Tribunal is having jurisdiction to entertain the dispute referred to it by the Deputy Labour Commissioner. To that extent, the Tribunal has not committed any error.
24. The next issue which is required to be decided in the present petitions is that whether the Tribunal has gone beyond the terms of the reference or not? For considering the said issue, once again, it is required to refer to the schedule referred by the Deputy Labour Commissioner to the Tribunal. From the terms of the reference, it is revealed that the dispute as to whether the contract entered into between the principal Employer and the Contractor is sham and bogus is not at all referred to the Tribunal. In spite of that, while considering the evidence and while giving the finding, the Tribunal has held Page 39 of 42 HC-NIC Page 39 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT that when the contract is sham and bogus, the Tribunal has jurisdiction to entertain the dispute. It is further held by the Tribunal that the GLO has given the deposition vide Exh.115 that during his visit, it was revealed that the pumpmen of the contractor and the pumpmen of the Company are performing the same type of work. On the basis of the said evidence, it is held by the Tribunal that in spite of similar type of work being performed by both the set of employees, less wages are paid to the employees of the Contractor and therefore the contract is sham and bogus. Thus, we are of the view that the Tribunal has travelled beyond the scope of reference which is not permissible as held by the Hon'ble Supreme Court, the learned Single Judge of this Court as well as the Division Bench of High Court of Delhi relied upon by learned counsel Mr.Patel for the Company.
25. From the record, it is further revealed that the Tribunal has also not considered the paying capacity of the Contractor to pay the wages similar to the wages paid by the Company to its workmen. As held by the Hon'ble Supreme Court in the case of Workmen of the Gujarat Electricity Board, Baroda (supra), if the claim be for a minimum wage, the employer must pay that wage in order to be allowed to continue the industry, and Page 40 of 42 HC-NIC Page 40 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT in such a case, the capacity of the industry to pay is irrelevant. However, if the industry is already paying the minimum wage, and the claim is for fair wage or living wage, the capacity of the industry to pay is a very important factor and the burden above the minimum wage can only be justifiably imposed if the industry if capable of meeting that extra burden. In the present case, there is no finding recorded by the Tribunal that the Contractor is having the paying capacity to pay the wages equivalent to the wages paid to the workmen of the Company. It is not in dispute that the Contractor is making payment of minimum wages to his workmen.
26. It is true that scope of interference while exercising powers under Article 227 of the Constitution of India is limited. However, in the facts of the present case, as discussed hereinabove, when the Tribunal has travelled beyond the terms of the reference and not considered the relevant aspects of the matter, this is a fit case where such powers are required to be exercised.
27. In view of the aforesaid discussion, we are of the view that the Tribunal has committed an error to the aforesaid extent by travelling beyond the terms of the reference and not Page 41 of 42 HC-NIC Page 41 of 42 Created On Wed Apr 26 00:42:35 IST 2017 C/SCA/12098/2016 CAV JUDGMENT considering the paying capacity of the Contractor to pay the wages similar to the wages paid to the workmen of the Company. Hence, the impugned award dated 31.12.2015 passed by Industrial Tribunal, Jamnagar in Reference (IT) No. 2 of 2012 (Old Reference No.188 of 1992) is hereby quashed and set aside. The matter is remanded back to the Tribunal for considering the issue afresh. However, it is clarified that the Tribunal has jurisdiction to entertain the reference as discussed hereinabove and therefore the Tribunal shall decide the case in light of the observation made hereinabove. The Tribunal shall decide the reference within a period of four months from the date of receipt of this order as the reference was originally made in the year 1992. Both the petitions are partly allowed. Rule is made absolute to the aforesaid extent.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani / Srilatha Page 42 of 42 HC-NIC Page 42 of 42 Created On Wed Apr 26 00:42:35 IST 2017