Madhya Pradesh High Court
Employers In Relation To The Management ... vs General Secretary, M.P. Koyla Mazdoor ... on 30 January, 2006
Author: R.S. Jha
Bench: R.S. Jha
ORDER R.S. Jha, J.
1. The petitioner assails the award dated 2-4-92 passed by the Industrial Tribunal-Cum-Labour Court, Jabalpur in the present petition/The question referred to the Industrial Tribunal-cum-Labour Court has been answered against the petitioner and it has been directed that the concerned workmen of the respondent Association are entitled to claim status of direct workmen of the petitioners, to be regularized and consequently reinstated with all other benefits arising out of the reinstatement except back wages. It has also been directed that difference of wages for the period of May, 1985 to January, 1987 in accordance with the National Coal Wage Agreement-Ill (hereinafter referred to as "NCWA-III") be paid to the respondents.
2. Before I delve into the factual and legal aspect of the case, it is apposite to mention that this Court vide interim order dated 13-10-1992 had stayed the operation of the award subject to the condition that the petitioner either reinstates the concerned workmen or pays them wages in lieu thereof in terms of Section 17B of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act"). It had also been ordered that part of the award which directs payment of difference of back wages shall not remain stayed. It is informed by the learned Counsels appearing for the parties that pursuant to the interim order passed by this Court the petitioner has reinstated the concerned workmen with a clear and specific condition that the reinstatement would be subject to the decision of the present petition.
3. The facts of the case as stated by the learned Counsel for the parties are that the petitioner entered into an agreement with one Shri Ashok Kumar Patni for earth work in open excavation for proposed Beharaband Pilot Mine of the petitioner at Bijuri Sub-Area for the construction of two inclines. The earth work had to be completed by the contractor Shri Ashok Kumar Patni within two months from the date of the agreement, i.e., from 10-5-85 to 9-7-85. However, subsequently the period was extended from time to time to nearly a period of about two years. The contractor executed the contract by engaging 46 workers, some time in January, 1987 the workmen were disengaged and therefore, they filed appropriate applications under the provisions of the Act. On failure of conciliation the Central Government vide notification dated 3-1-89 referred the matter for adjudication to the Labour Court. The terms of reference were as under:
Terms of Reference:
Whether the execution of earth work in open excavation for proposed Beharaband Pilot Project of Bijuri Sub Area through contractor workers fell in the categories of operation in coal mine in which employment of contract labour is prohibited by Notification No. SO.488, dated 1-2-1975 of Government of India. If so, whether, the workmen employed by Shri Ashok Kumar Patni, Contractor engaged by the management of Bijuri Sub-Area for the purpose of earth work in open excavation for proposed Beharaband Pilot Project at Bijuri Sub-Area of SECL, can legally claim the status of direct workers employed by the management Bijuri Sub-Area of Hasdeo Area of SECL ? If so, to what relief these workers are entitled and from what date ?
4. The Labour Court vide the impugned award dated 2-4-92 answered the reference in favour of the respondents workmen and held that they were legally entitled to claim the status of direct workers employed by the management of Bijuri Sub Area of Hasdeo Area of the South Eastern Coal Fields. It also directed reinstatement and regularization of the respondents' workmen with all benefits except back wages. However, difference of wages from May, 1985 to January, 1987 in respect of NCWA-3 was also awarded by the Labour Court. The petitioner being aggrieved by the award has filed the present petition.
5. The contentions of the learned Senior Counsel Shri P.S. Nair, appearing for the petitioner are : (a) that the notification dated 1-2-75 issued under the provisions of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as "the CLRA Act") is not applicable to the petitioner; (b) that the work awarded to the contractor does not fall within the prohibited categories mentioned in the notification dated 1-2-75; (c) that the Coal Wage Board has no connection with the employees of the contractor and therefore, the benefit of NCWA-3 granted to the respondents by the Labour Court is erroneous; (d) that the work was awarded to the contractor who had obtained a valid license under the provision of the CLRA Act and it was the contractor who had terminated the services of the respondents workmen and therefore the petitioner could not have been held liable; (e) that the Labour Court has travelled beyond the terms of reference and therefore, the award directing reinstatement, regularization and difference of wages is contrary to law; (f) that the findings recorded by the Labour Court in the award are perverse, illegal and in ignorance of the evidence and other materials on record; (g) that no equity flows nor can it be claimed by the respondents on the ground of reinstatement during the pendency of the present petition by the respondents as the same was only in compliance of the order of this Court; (h) that the notification dated 1-2-75 issued under the provisions of Section of the CLRA Act is not applicable or attracted to the Beharaband Pilot Mine of the petitioner in view of the law laid down by the Hon'ble Supreme Court in the case of Steel Authority of India Ltd. and Ors. v. National Union Waterfront Workers and Ors. (hereinafter referred to as "SAIL") ; (i) that the Labour Court could not have directed reinstatement as an automatic consequences of applicability of the notification dated 1-2-75 in view of the law laid down in the case of Steel Authority (supra).
6. On the other hand, Shri R.N. Shukla, learned Senior Counsel for the respondents submits that (a) the notification dated 1-2-75 applies to the respondents-workmen; that the validity of the notification has not been challenged by the petitioner and therefore the petitioner cannot be permitted to raise the said issue; (b) in view of the provisions of the CLRA Act the petitioner is the principal employer of the respondents- workmen and is therefore liable to pay them wages as per NCWA-III; (c) as the notification applies regularization is the consequential benefit accruing to the respondents-workmen; (d) that the question of reinstatement, regularization and payment of difference of wages are all incidental to the reference made to the Labour Court and therefore, the award is not beyond the terms of reference; (e) the impugned award is based on the documentary and oral evidence on record and does not suffer from any perversity; (f) that the petitioner has reinstated the respondents workmen who have been working since then in the establishment of the petitioner and therefore the validity of the impugned award has now become academic and need not be gone into; (g) that on the principles of equity the petition should be dismissed and the respondents workmen should be permitted to continue under the same arrangement as disturbing it after such a long time would be extremely harsh and inhuman.
7. I have heard the learned Senior Counsels appearing for the parties at length. It is fairly conceded by both the learned Senior Counsel appearing for the parties that the judgment of the Hon'ble Supreme Court in the case of SAIL (supra) rendered during the pendency of the present petition answers most of the issues raised by the parties and therefore I think it proper to refer to the said judgment and the law laid down therein before dealing with the issues raised by them.
8. The Constitution Bench of the Hon'ble Supreme Court in the case of SAIL (supra), on a reference being made it due to two conflicting judgments decided three points which have been enumerated in Para 6 of the said judgment and may be profitably reproduced:
6. Three points arise for determination in these appeals:
(i) What is the true and correct import of the expression "appropriate Government" as defined in Clause (a) of subsection (1) of Section 2 of the CLRA Act;
(ii) Whether the notification dated 9-12-1976 issued by the Central Government under Section 10(1) of the CLRA Act is valid and applied to all Central Government companies; and
(iii) Whether automatic absorption of contract labour, working in the establishment of the principal employer as regular employees, follows on issuance of a valid notification under Section 10(1) of the CLRA Act, prohibiting the contract labour in the establishment concerned.
The decision of the Supreme Court on points Nos. (ii) and (iii) enumerated above have conclusive impact on the issues before this Court. The discussion in respect of point No. (ii) is from Paragraph Nos. 47 to 53 which read as under:
47. Point (ii) relates to the validity of the notification issued by the Central Government under Section 10(1) of the Contract Labour (Regulation and Abolition) Act, 1970, dated 9-12-1976. The main contention against the validity of the notification is that an omnibus notification like the impugned notification would be contrary to the requirements of Section 10 of the CLRA Act and is illustrative of non-application of mind.
48. It would be profitable to refer to Section 10 of the Act:
10. Prohibition of employment of contract labour.-- (1) Notwithstanding anything contained in this Act, the appropriate government may, after consultation with the Central Board, or as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under Sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as--
(a) Whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;
(b) Whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;
(c) Whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;
(d) Whether it is sufficient to employ considerable number of whole time workmen.
Explanation :-- If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereof shall be final.
49. A careful reading of Section 10 makes it evident that Sub-section (1) commences with a non-obstinate clause and overrides the other provisions of the CLRA Act in empowering the appropriate Government of prohibit by notification in the Official Gazette, after consultation with the Central Advisory, Board/State Advisory Board, as the case may be, employment of contract labour in any process, operation or other work in any estaablishment. Before issuing notification under Sub-section (1) in respect of an establishment the appropriate Government is enjoined to have regard to : (i) the conditions of works; (ii) the benefits provided for the contract labour; and (iii) other relevant factors like those specified in Clauses (a) to (d) of Sub-section (2). Under Clause (a) the appropriate Government has to ascertain whether the process, operation or other work proposed to be prohibited is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; Clause (b) requires the appropriate Government to determine whether it is of a perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; Clause (c) contemplates a verification by the appropriate Government as to whether that type of work is done ordinarily through regular workmen in that establishment or an establishment similar thereto; and Clause (d) requires verification as to whether the work in that establishment is sufficient to employ considerable number of whole time workmen. The list is not exhaustive. The appropriate Government may also take into consideration other relevant factors of the nature enumerated in Sub-section (2) of Section 10 before issuing notification under Section 10(1) of the CLRA Act.
50. The definition of "establishment" given in Section 2(1)(e) of the CLRA Act is as follows:
2. (1) (e) 'establishment' means--
(i) any office or department of the Government or a Local Authority, or
(ii) any place where any industry, trade, business, manufacture or occupation is carried on;
51. The definition is in two parts : the first part takes in its fold any office or department of the Government or Local Authority--the Government establishment; and the second part encompasses any place where any industry, trade, business, manufacture or occupation is carried on -- the non-Government establishment. It is thus evident that there can be plurality of establishments in regard to the Government or Local Authority and also in regard to any place where any industry, trade, business, manufacture or occupation is carried on.
52. Now, reading the definition of "establishment" in Section 10, the position that emerges is that before issuing notification under Sub-section (1) an appropriate Government is required to : (i) consult the Central Board/State Board; (ii) consider the conditions of work and benefits provided for the contract labour, and (iii) take note of the factors such as mentioned in Clauses (a) to (d) of Sub-section (2) of Section 10, referred to above, with reference to any office or department of the Government or Local Authority or any place where any industry, trade business, manufacture or occupation is carried on. These being the requirement of Section 10 of the Act, we shall examine whether the impugned notification fulfils these essentials.
53. The impugned notification issued by the Central Government on 9-12-1976, reads as under:
S.O. No. 779 (E).-- In exercise of the power conferred by Sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970) the Central Government after consultation with the Central Advisory Contract Labour Board, hereby prohibits employment of contract labour on and from the 1-3-1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate Government under the said Act is the Central Government:
Provided that this notification shall not apply to the outside cleaning and other maintenance operations of multi-storeyed buildings where such cleaning or maintenance operations cannot be carried out except with specialized experience.
A glance through the said notification makes it manifest that with effect from 1-3-1977, it prohibits employment of contract labour for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishment in respect of which the appropriate Government under the said Act is the Central Government. This clearly indicates that the Central Government had not adverted to any of the essentials, referred to above, except the requirement of consultation with the Central Advisory Board. Consideration of the factors mentioned above has to be in respect of each establishment, whether individually or collectively, in respect of which notification under Sub-section (1) of Section 10 is proposed to be issued. The impugned notification apart from being an omnibus notification does not reveal compliance with Sub-section (2) of Section 10. This is ex facie contrary to the postulates of Section 10 of the Act. Besides, it also exhibits non-application of mind by the Central Government. We are, therefore, unable to sustain the said impugned notification dated 9-12-1976 issued by the Central Government.
The conclusions have been summarized by the Apex Court in Paragraph 125 of the judgment which reads as under:
125. The upshot of the above discussion is outlined thus:
(1) (a) Before 28-1-1986, the determination of the question whether the Central Government or the State Government is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression "appropriate Government" as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specific controlled industry, or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company ? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise will the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government;
(b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in Clause (a) of Section 2 of the Industrial Disputes Act; if (i) the Central Government company/undertaking concerned or any undertaking concerned is included therein a nominee, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by a railway company; of (c) by a specified controlled industry, then the Central Government will be the appropriate Government; otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government. (2) (a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government;
(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and (2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question, and
(ii) other relevant factors including those mentioned in subsection (2) of Section 10;
(b) Inasmuch as the impugned notification issued by the Central Government on 9-12-1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively, i.e., from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the CLRA Act nor any other provisions in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by the appropriate Government under Sub-section (1) of Section 10, prohibiting in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the establishment concerned.
(4) We overrule the judgment of this Court in Air India case prospectively and declare that any direction issued by any industrial adjudicator/any Court including the High Court, for absorption of contract labour following the judgment in Air India case shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibition employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or genuine contract or is a mere ruse/camouflage to evade compliance with various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the establishment concerned subject to the conditions as may be specified by it for that purpose in the light of Para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
9. In view of the law as laid down by the Hon'ble Supreme Court in the above mentioned judgment, the contentions of the learned Counsel for the parties have to be examined. The notification in question which has been relied upon by the respondents was issued on 1-2-1975 and is in the following terms:
No. .. In exercise of the powers conferred by Sub-section (i) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, the Central Government after consultation with the Central Board, hereby prohibits employment of contract labour in the works, specified in the Schedule annexed hereto in all Coal Mines.
THE SCHEDULE I. Raising or raising-cum-selling of Coal;
II. Coal loading and unloading;
III. Overburden removal and earth cutting;
IV. Soft coke manufacturing;
V. Driving of stone drifts and miscellaneous stone cutting underground.
A perusal of the notification shows that is in as broad and general terms in respect of all coal mines as the one dated 1-3-1977 which was quashed by the Hon'ble Supreme Court in the SAIL judgment and does not make any mention about taking into consideration the various factors enumerated in Section 10 except for making a mention that the Central Board was consulted.
10. Admittedly, the notification under the provisions of the CLRA Act was issued in the year 1975 whereas the Beharaband Mine of the petitioner was proposed to be established in the year 1985 pursuant to which the earth work contract for open excavation for the proposed mine for construction of a pair of inclines were entered into with one Shri Ashok Kumar Patni on 10-5-85 by the petitioner.
11. The Apex Court in the SAIL judgment has held that a notification under Section 10(1) of the CLRA Act can be issued by the appropriate Government only after consultation with the Central Advisory Board or the State Advisory board as the case may be and having regard to the conditions of work and benefits provided for the contract labour in the establishment in question and other relevant factors including those mentioned in Sub-section (2) of Section 10 of the CLRA Act. In Para 53 quoted above it has also been held that the consideration of the factors mentioned in Section 10 of the CLRA Act has to be in respect of each establishment in respect of which notification is proposed to be issued. Issuance of an omnibus notification which did not indicate any application of mind or compliance with the provisions of Section 10 was held to be bad and contrary to law. Admittedly, when the notification was issued by the Central Government in the year 1975 the Beharaband Mine was not in existence as is evident from the agreement for the earth work in open excavation for the proposed mine dated 10-5-85. If the mine and the mining establishment at Beharaband was not in existence when the notification was issued it goes without saying that the parameters and factors mentioned in Section 10 of the CLRA Act which are required to be taken into consideration in respect of each establishment prior to issuance of such a notification under Section 10 were not considered by the Central Government in respect of Beharaband Mine.
12. At this stage, it is noteworthy to consider the import and impact of the provisions of Section 10 of the CLRA Act which has already been interpreted and reproduced in judgment of the Apex Court with specific reference to the Beharaband Mine of the petitioner. As per the law laid down by the Hon'ble Supreme Court in the case of SAIL (supra) prior to issuance of notification in respect of the Beharaband Mine of the petitioner the Central Government is required to consult the Central Board or the State Board as the case may be, it has to be the nature of the work being done by the workmen is any process, operation or other work in the establishment of the Beharaband Mine. The notification should have been in respect of the establishment of the Beharaband Mine and should have been issued having regard to the conditions of work the benefit provided for the contract labour in the mine and taking into account the necessity of the work being done by the workmen vis-a-vis the mine, the nature of the work, ie., whether it is perennial or of short duration and whether the work being done by the workmen was of a regular nature. Apparently as the notification was issued in the year 1975 the occasion for the Central Government to examine all these factors in respect of Beharaband mine did not arise as it was proposed to be established 10 years thereafter. An omnibus general notification would not apply to establishments coming up subsequent to issuance of such an omnibus and general notification as that would be contrary to the mandatory requirement of Section 10 of CLRA Act. I therefore, hold that the notification issued in 1975 has no applicability to the Beharaband mine of the petitioner. It is clarified that this Court is not expressing any opinion on the validity of the Notification but only deciding the question of its applicability to the Beharaband Mine of the petitioner.
13. In view of the conclusions of this Court that the notification issued under Section 10 of the CLRA Act is not applicable to the Beharaband Mine of the petitioners. I have no hesitation in holding that the workmen do not become direct workers employed by the petitioner as a consequence thereof, and that the petitioner is not the principal employer of the concerned workmen therefore the award of the Labour Court in this respect also is set aside.
14. At this stage, it is also pertinent to note that in the case of SAIL (supra), the Hon'ble Supreme Court has held in Para 125 (3) that Section 10 of the CLRA Act or any other provision or law does not provide for automatic absorption of the workmen on issuance of a notification under Section 10 and the principal employer cannot be required to absorb the contract workmen simply on issuance of a notification and therefore, that part of the award which directs reinstatement absorption and payment of difference of wages is also contrary to the provisions of the CLRA Act as has been held by the Hon'ble Supreme Court.
15. The learned Counsel for the respondents has submitted that in view of the decision of the Hon'ble Supreme Court in Para 125 (2) (b) and (4) the SAIL judgment has been applied prospectively only and it has been specifically laid down by the Apex Court that no order or direction of the Labour Court should be altered or modified pursuant to the said judgment. It is contended that in view of the directions of the Hon'ble Supreme Court in Para 125 (2) (b) and (4) the law laid down in the judgment SAIL (supra) should not be applied and in any case cannot be relied upon for the purposes of setting aside the impugned award passed by the Labour Court as the same was passed on 2-4-92 much prior to the judgment in the SAIL (supra) case. I have no hesitation in rejecting the arguments of the learned Counsel for the respondents on two counts apart from the ground that the Hon'ble Supreme Court was dealing with the issue of the consequences of quashing the notification: First, as the direction of the Apex Court in Para 125 (4) is limited only to those directions issued by any Court which have been passed by following the judgment in the Air India case which is not the situation in the present case and, Secondly, as the Hon'ble Supreme Court itself in Para 125 (2) (b) and (4) has restricted the prospective applicability of the judgment to only those cases where the directions issued by the Courts have not been given effect to or have not become final which is also the case in the present petition as the impugned award has neither become final not has it been implemented, its operation having been stayed by this Court subject to certain conditions.
16. I am of the considered opinion that in the view of the conclusions recorded by this Court on the above mentioned issues it is not necessary for this Court to decide any of the other points raised by the Counsels for the parties as the decision on the above mentioned issues conclusively decides the fate of the petition.
17. The only other issue that survives for consideration of this Court is as to whether the Labour Court has gone beyond the term of reference while passing the impugned award. A perusal of the terms of reference which have been reproduced in the preceding paragraphs makes it clear that the issue regarding illegal termination or retrenchment of the respondents' workmen was not part of the terms of reference. It is settled law that the Labour Court is a creation of the statute and can exercise only those powers which are conferred by the statutory provisions. The dispute referred to the Labour Court was only as to whether the work being done by the workmen fell within the activities prohibited by notification dated 1-2-75 and if so whether the workmen could claim the status of direct workers employed by the petitioner. The question of illegal retrenchment, regularization or paying difference of wages was not a part of the reference nor were these issues incidental to the reference made to the Labour Court. I am compelled to say so as applicability of a notification issued under the provisions of Section 10 of the CLRA Act is a separate and distinct issue than illegal retrenchment, regularization and difference of wages. The facts and legal parameters required to be pleaded and proved in a reference regarding illegal retrenchment are numerated in Chapter V-A and V-B and Section 2(oo)(bb) of the Act. The nature and standard of the pleadings and proof in respect of a reference regarding retrenchment as also regularization and difference of wages and a reference regarding applicability of a notification issued under Section 10 of the CLRA Act are therefore, totally different.
18. The Apex Court in the case of Surendranagar District Panchayat v. Jethabhai Pitamberbhai has held that it is the burden of the workmen to plead and prove continuous service of 240 days and on his failure to do so the relief under Sections 25F and 25B of the I.D. Act cannot be granted. Similarly in the case of Batala Coop. Sugar Mills Ltd. v. Sowaran Singh (2005) 8 SCC 481, the Hon'ble Supreme Court on finding that the workmen had failed to discharge his burden of proving continuous service of 240 days in the preceding twelve months allowed the appeal against the award of reinstatement in his favour. The provisions of Section 2(oo)(bb) were also considered and it was held that where the engagement of the workmen is for specific work and for a specific period the determination of his service in terms of the contract of service did not amount to retrenchment. Thus the facts required to be pleaded and proved in a reference regarding retrenchment have no similarity or connection with the reference in issue in the present case. In my considered opinion the issue of retrenchment cannot by any stretch of imagination be said to be incidental to the issue of applicability of the issue under the CLRA Act.
19. Learned Counsel for the petitioner has relied upon the judgments in case of Hochtief Gammon v. Industrial Tribunal , Pottery Mazdoor Panchayat v. Perfect Pottery Co. AIR 1979 SC 1356, Delhi Cloth and General Mills v. Its Workmen and Union of India and Ors. v. Santiram Ghosh and Ors. AIR 1989 SC 402, in support of the contention that the award beyond the terms of reference is not binding on the parties and is non-nest.
20. In Hochtief Gammon v. Industrial Tribunal, (supra), a dispute regarding payment of bonus was referred to the Labour Court. One of the issue raised during reference was as to who was the employer. The Apex Court while deciding the matter held that the question as to who was the real employer was not an incidental issue arising out of the reference and could not have been decided by the Industrial Tribunal which had limited jurisdiction. It was held that the Industrial Tribunal can decide only those industrial disputes which are referred to it for adjudication by an order of reference under Section 10 of the Act and it is not open to the Tribunal to travel materially beyond the terms of the reference which determine the scope of its power and jurisdiction. Similarly, in the case of Pottery Mazdoor Panchayat v. Perfect Pottery Co., (supra), the Hon'ble Supreme Court held that in a reference regarding the dispute on facts relating to the question of propriety and justification of closure of a business the Tribunal had no jurisdiction to go behind the fact of closure and inquire into the question as to whether there was really a closure or only an illegal lock-out as this issue was beyond the terms of reference and was not an incidental issue. In 1962 (Supp.) 3 SCR 561, the Hon'ble Supreme Court held that in a reference regarding leave facilities the Tribunal had no jurisdiction to increase festival holidays as that issue was beyond the terms of reference as leave facilities and holiday facilities have different connotation. In Union of India and Ors. v. Santiram Ghosh and Ors., (supra), in respect of a reference regarding applicability of a particular revised scale of pay it has been held by the Hon'ble Supreme Court that the Tribunal had no power or authority to prescribe two levels of scale of pay and minimum qualifications for such levels as it was beyond the terms of reference. In Delhi Cloth & General Mills, (supra), it was held by the Hon'ble Supreme Court that where the question of reference to the Industrial Tribunal was the legality or justification of strike and lock-out it could not enlarge the scope of its jurisdiction and decide that there was no strike or lock-out at all. While deciding this issue, the Hon'ble Apex Court also considered the impact and import of the term incidental issues in Paragraph 9 which may profitably be reproduced below:
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 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 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.
The law as laid down by the Apex Court while interpreting the scope and powers of the Industrial Tribunal is that the Industrial Tribunal has to confine itself strictly to only those issues which have been referred to and those which are incidental thereto. The import and impact of the word 'incidental' is that it should be something so adjunct, linked and connected with the dispute that it's happening would be a natural consequence of the decision in the reference. When we apply this principle to the present case it is apparent that even if the main reference regarding applicability of the notification dated 1-2-75 is answered in the affirmative it would not automatically or incidentally effect the retrenchment or regularization of workers or their entitlement to difference of wages as these issues are neither an adjunct to the main issue or to incidental to it and are required to be pleaded and proved separately. They could of course be subject matter of a separate cause of action or reference. In my considered opinion that the Tribunal has apparently transgressed the terms of reference in the present case and therefore the impugned award deserves to be quashed.
21. In view of the discussion in the foregoing paragraphs, the impugned award passed by the Tribunal deserves to be set aside in view of the law as laid down by the Hon'ble Supreme Court subsequently in the SAIL (supra) judgment; in view of the fact that retrenchment, regularization and payment of difference in salary are not matters incidental to the reference made to the Tribunal; that the Tribunal has ordered reinstatement, regularization and difference in pay which are issued beyond the terms of reference and as it has ordered the petitioner to treat the respondent workmen as direct workmen holding it to be the principles employer without their being any evidence on record, as if it were an automatic consequences of applicability of the notification. It has also failed to take into account the material fact that the contractor in question had obtained a valid license under the provisions of CLRA Act which in itself implied the fact that the Competent Authorities prior to issuance of the license had applied their mind and had concluded that the work to be undertaken by the contractor was not prohibited.
22. The conclusions based on the above mentioned analysis can be summarized as under:
(a) that the notification dated 1-2-1975 is not applicable to the Beharaband Mine of the petitioner;
(b) that the Industrial Tribunal has travelled beyond the terms of the reference in directing reinstatement, regularization and payment of difference of wages.
23. In view of the above mentioned conclusions, the petition filed b; the petitioner deserves to be and is hereby allowed and the award of the Industrial Tribunal dated 2-4-1992 is quashed.
24. At this stage, it is pointed out by the learned Counsel for the respondents that the 46 workmen have been working in view of the orders of reinstatement issued in their favour pursuant to the interim orders passed by this Court and have also been sent on training and therefor promoted and therefore, it would be extremely harsh if they are removed from service. On the other hand, the learned Counsel for the petitioner submits that the petitioners were taken back only in view of the interim orders of this Court in the year 1994 with a specific condition that the reinstatement would be subject to the final decision in this writ petition and all the respondents-workmen had given a written acceptance of this condition. Under the circumstances, no equity would flow in favour of the workmen as their reinstatement was not a conscience act on their part but was only in due compliance of interim orders of this Court, and therefore, compliance with the orders of this Court should not be construed to their disadvantage nor should it cause any prejudice to them. The petitioner rely upon the maxim attus curie neminem gravabit an act of Court shall prejudice no man.
25. Having heard the learned Counsels for the parties at length on this issue, I am of the considered opinion that the workmen cannot claim any right of continuance or regularization on the basis of the reinstatement by the petitioner which was only as a consequence of and in due compliance of the interim order of this Court. Once this Court has quashed the award of the Industrial Tribunal dated 2-4-92 and it is held that the notification has no applicability to the establishment of the petitioner this Court cannot direct the petitioner to continue the workmen in question as that would amount to nullifying the provisions of law however, the directions given by the Hon'ble Supreme Court in Paragraph 125 (6) of the SAIL judgment may be profitably referred to and taken into account by the respondents and in case the petitioner intends to employ a regular workman for undertaking the prohibited operations in their establishment they would be bound to comply with the directions contained in Para 125 (6) of the SAIL judgment. That apart and without giving any decision or issuing any direction in this regard and only by way of an expression I may observe that the petitioner may if they deem fit to do so in their wisdom consider the plea of the respondent workmen sympathetically. It is, however, clarified that this is neither the decision nor the direction of this Court and no right can be claimed by either of the parties on this basis.
26. In light of the above, the petition is allowed. There shall be no order as to costs.