Madhya Pradesh High Court
W.C.L., Th: G.M., Nagpur vs R.K.K.M.S.(Intuc) & Anr. on 4 April, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 04th OF APRIL, 2024
WRIT PETITION No.2144 of 2002
BETWEEN:-
WESTERN COALFIELDS LIMITED, NAGPUR
THROUGH: GENERAL MANAGER, KANHAN AREA, PO
JUNNARDEO, DISTRICT CHHINDWARA
....PETITIONER
(BY SHRI ANOOP NAIR - ADVOCATE)
AND
1. R.K.K.M.S. (INTUC), PO CHANDAMETTA,
PARASIA, DISTRICT CHHINDWARA, MP
REPRESENTING WORKMEN.
2. SRI M.G. WANARE, EX. DY. CLC (C)
(ARBITRATOR), 62, FRIENDS COLONY, KATOL
ROAD, PO NAGPUR-13.
.....RESPONDENTS
............................................................................................................................................
Reserved on : 10.01.2024
Pronounced on : 04.04.2024
............................................................................................................................................
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
ORDER
The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India questioning validity of the award dated 18.08.2001 (received on 11.01.2002) after its publication.
2. The facts of the case in brief are as under:-
22.1. The workers in Pench and Kanhan Area of WCL went on lightening strike from 23.09.1988 to 26.09.1988 and during the said period the productions came to a complete standstill. After a settlement dated 26.09.1988, the strike was withdrawn. Since no work was carried on by the workers, they were not paid any wages by the Management.
On a dispute raised by the parties, the following reference was made to Shri M.G. Wanare, Ex. Deputy Chief Labour Commissioner (C) to decide the following reference:-
"Whether, the demand of R.K.K.M.S. (INTUC) for payment of wages to the workmen of Pench and Kanhan Area for the period of strike from 23.09.1988 to 26.09.1988 is legal and justified? If so, to what relief they are entitled?"
2.2 An agreement was entered into between the workmen and the Management on 05.11.1988 to refer the matter to Arbitration. In the agreement, it is clearly stated that there was a strike from 23.09.1988 to 26.09.1988 and vide order dated 06.07.1990, the Central Government referred the matter to Deputy Chief Labour Commissioner (C). 2.3 The Management submitted their statement of claim vide Annexure P/5 whereas the Union filed their statement of claim vide Annexure P/6. The parties led their evidence before the learned Arbitrator and thereafter the award dated 18.08.2001 was passed vide Annexure P/1.
3. Shri Anoop Nair, learned counsel appearing for the petitioner has submitted that the petitioner is challenging the award mainly on the ground that the Arbitrator in paragraph 32 of its award acting without jurisdiction had held that there was no strike. The observations made by Arbitrator in paragraphs 32 and 33 of the Award are material to be examined and as such, both the respective paragraphs are reproduced hereunder:-
3"32. The notification dated 6th July 1990 of Government of India under consideration orders reference to decide whether demand for payment of wages for period of strikes from 23rd to 26th September, 1988 is legal and justified. The points to be looked into will be whether there was strike during the period of 23rd to 26th September, 1988 and in this situation the reasons for it has to be examined. It is admitted by both the parties that there was no strike as there was no notice of strike given by the workmen representing INTUC nor there was given any formal demand of workers representative INTUC nor there existed any threat of strike or agitation which might lead to strike. The arguments however revealed that there had been dissatisfaction and/or unhappiness over certain issues and decision taken by WCL HQ and, therefore, the INTUC officials for some time before the period of 23rd to 26th September, 1988 raised the issues related to introduction of 45 cft. and above size of the tubs to be used underground the mines. This was the only reason for causing launching of an agitation by INTUC in the form of no production. This was not declared openly by INTUC but it was clear that all the union officials took decision of creating obstruction of movement of tubs movements. I do not feel it is necessary to go into merits and demerits of the issue of introduction of size of tubs and the decision taken on by the WCL HQ. Nagpur. Neither of the parties to the dispute desired me to deal on this premises though both of the parties elaborately dealt with in their lengthy arguments filed before me. It is interesting to note that none of the parties to the dispute discuss this area while framing issues on 15th October, 1990 when the matter of framing of issues consumed the entire day of 15th October 1990 for arguments and counter- arguments.
33. When we look into physical situation we find there was no strike notice/union's demand and therefore there was no prima facie legally speaking there appeared no strike as such and the INTUC repeatedly cried hoarse "there was no strike". Let us examine the definition of strike which WCL in argument mentioned that there was concerted action on the part of workers under instigation by INTUC to refuse to work with common intention to stop production work and the action on the part of workmen amounted to a strike within the meaning of the definition 'strike' laid down under sub-section (q) of Section 2 of the I.D. Act, 1947 (hereinafter referred to as "Act"). It is proved by the evidence given by a large number of witnesses that the workmen did not do production of coal. I observed from witnesses' statement that the action was not confined to one category like loaders. The WCL failed to bring evidence to prove that the workers refused to do the work assigned to them. On the contrary the INTUC brought on record to prove the workmen did not refuse work but carried out the work assigned to them by their immediate supervisors like Overman and Mining Sirdar and INTUC proved that Overman's diary being statutory record under Mines Act showed those facts. WCL failed to disprove it."4
4. Learned counsel for the petitioner has pointed out that the findings given by the Arbitrator with regard to grant of wages to the workmen for the period from 23.09.1988 to 26.09.1988 holding their claim justified is nothing but a perverse finding. It is also contended by him that the findings given by the Arbitrator are contrary to the reference made to it. Counsel for the petitioner has placed reliance upon paragraphs-18 and 19 of a judgment reported in 2015(4) SCC 71 (Oshiar Prasad and others Vs. Employers in relation to Management of Sudamih Coal Washery of M/s Bharat Coking Coal Limited Dhanbad Jharkhand), which reads as under:-
"18. One of the questions which fell for consideration by this Court in Delhi Cloth and General Mills Co. Ltd. v. Workmen [AIR 1967 SC 469] was that what are the powers of the appropriate Government while making a reference and the scope and jurisdiction of the Industrial Tribunal under Section 10 of the Act."
19. Mitter, J., speaking for the Bench, held as under: (Delhi Cloth and General Mills case [AIR 1967 SC 469] , AIR p. 472, paras 8-
9) "8. ... Under Section 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 those 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 5 specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary:
'happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated:' 'Something incidental to a dispute' must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct [to it]."
5. Considering the facts and circumstances of the case and on going through the observations and findings given by the Arbitrator, I am of the opinion that the award is illegal. I have no hesitation to say that the findings given by the Arbitrator are perverse and in fact, the Arbitrator has decided something which was not referred before it and even which was not the subject matter of reference.
6. Since nobody appeared on behalf of the respondents to oppose the submission made by counsel for the petitioner, it appears that respondents are also not interested to agitate their issue before this Court.
7. In view of the aforesaid, I am of the opinion that the award which is impugned in this petition is not sustainable in the eyes of law because it was based upon perverse findings. The Arbitrator has decided the issue beyond the scope of reference made to it. Thus, the impugned award dated 18.08.2001 (Annexure-P/1) is hereby set aside. Resultantly, the petition is allowed.
(SANJAY DWIVEDI) JUDGE rao SATYA SAI RAO 2024.04.05 15:13:47 +05'30'