1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Kailash Chand vs. Judge, Labour Court No. 1, Jaipur & Ors. (S.B. CIVIL WRIT PETITION NO. 402/1999) Date of Order: 14/10/2008 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Kamlakar Sharma, for the petitioner(s). Mr. S.L. Meena, Government Counsel for the State. By the Court: (Oral). This writ petition is directed against the award dated 09.09.1998 passed by the learned Labour Court No. 1, Jaipur, in LCR No. 61/1996. The petitioner has prayed that the said award be quashed and set aside and the termination of petitioner's services be held to be illegal and void. It has also been prayed that the respondents be directed to reinstate the petitioner with all consequential benefits. 2. The petitioner was initially appointed on the post of Stenographer on 01.02.1991 for which an order was passed on 12.04.1991. The petitioner was appointed on daily wages basis at the rate of Rs. 30/- per day and was asked to discharge his duties at the office of the Director, Local Bodies, Jaipur (Annexure-1). Before the appointment of the petitioner, the Department of Local Bodies had conducted a test which the petitioner had passed. The appointment of the petitioner was against a sanctioned post which was available in the Municipal Council, Hanumangarh. 2 3. The services of the petitioner were extended from time to time by the Director, Local Bodies and he was paid salary from the account of Municipal Council, Hanumangarh. The petitioner was a regular employee. His attendance sheet was being maintained in the office of Director and thereafter sent to the office of Commissioner, Municipal Council, Hanumangarh (Respondent No. 3). 4. As in the case of petitioner, there were several other persons, namely Raj Kumar Pareek, Anil Gaur and others, who had been appointed, after adopting a similar procedure as in the case of the petitioner. The petitioner had discharged his duty from 01.02.1991 to 24.06.1992 and he had availed the salary upto 31.05.1992. Thereafter, the services of the petitioner were orally terminated w.e.f. 24.06.1992. Being aggrieved of the order of termination, the petitioner raised an industrial dispute before the Conciliation Officer. The Conciliation Officer had submitted a failure report and, therefore, the dispute was referred by the State Government for adjudication to the learned Judge, Labour Court (respondent No. 1). The reference made by the State Government reads as under:- "Èया ौिमक ौी कैलाशचंद åयास पुऽ ौी योगेÛि कुमार åयास | ǔजनका ूितिनिध×व ौी आर.सी. जैन, बी.एम.एस., काया[लय ४२ पटेल कालोनी सरदार पटेल माग[ जयपुर Ʈारा Ǒकया गया है | को िनयोजक िनदेशक ःथानीय िनकाय ǒवभाग जयपुर राज. उÍच Ûयायालय के पीछे जयपुर एवं आयुƠ नगर पǐरषɮ, हनुमानगढ़ ǔजला हनुमानगढ़ Ʈारा Ǒदनांक २५.०६.९२ से अकारण सेवामुƠ Ǒकया जाना उिचत एवं वैध है ? यǑद ौिमक Ǒकस राहत एवं रािश को ूाƯ करने काम अिधकारȣ है ?" 3 In other words, the terms of reference were that as to whether the termination of the petitioner's services by the Director, Local Bodies and the Municipal Council, Hanumangarh was justified or not and as to what relief the petitioner was entitled to. 5. The petitioner had then filed a statement of claim before the learned Judge, Labour Court. The notices were issued to the respondents. But despite of service, no one appeared on behalf of the respondents and therefore an order of ex parte proceedings was drawn against them. Ultimately, the learned Labour Court, by its award dated 04.02.1997, held that the termination of the petitioner was illegal and contrary to the provisions of Section 25 F of the Industrial Disputes Act. The learned Labour Court directed that the petitioner be reinstated in service alongwith 70% back wages (Annexure-9). 6. Subsequently, the respondent No. 3 filed an application for setting aside the ex parte award. The learned Labour Court had then set aside the ex parte award and afforded an opportunity to the respondents to defend their case. The petitioner, in support of his claim, submitted his affidavit with documents as P-1 to P-4. The respondents filed their reply and in support of it produced an affidavit of one Madan Singh. The learned Judge, Labour Court, after hearing both the parties, passed the impugned award dated 09.09.1998 and held that the termination of petitioner's services was justified. The learned 4 Labour Court further held that the petitioner was rightly terminated from service and therefore he is not entitled to any relief (Annexure-12). 7. Respondent No. 3 has filed reply to the writ petition and reiterated his stands taken before the learned Labour Court. It has been stated in the reply that the appointment of the petitioner was not in accordance with law and that the post on which he was appointed could have been filled only by a regular selection conducted by the Rajasthan Public Service Commission. It has also been stated that in the budget of the Municipal Council, there is no provision of appointment of a stenographer. Further, it is stated that the Director had no authority to make such appointment. It has been stated by respondent No. 3 that for an appointment, a regular procedure is prescribed under the Municipal Ministerial Subordinate Service Rules, 1963 and no such procedure had been followed in the present case. The appointment of the petitioner is said to be a back-door entry. For the said reasons, the respondents have stated that the learned Labour Court has rightly held the termination of the petitioner to be just and proper. 8. The case of the petitioner is that on termination of his services by the respondents, an industrial dispute was raised and on failure of conciliation proceedings, the reference was made by the State Government for adjudication by respondent No. 1. The terms of reference were very specific, as to whether 5 the termination of the petitioner's services was justified or not. Therefore, the learned counsel for the petitioner submitted that the impugned award passed by the respondent No. 1 on 09.09.1998 is illegal on the face of it as the learned Labour Court has held the termination to be just and proper, primarily on the ground that the appointment of the petitioner is not proper. The learned counsel for the petitioner has submitted that when the learned Labour Court has held that the termination of the services of the petitioner was in violation of the provision of Industrial Disputes Act then it could not have gone into the nature as well as method of appointment of the petitioner because it was only to adjudicate upon the terms of reference made to it. Therefore, the learned counsel for the petitioner has submitted that the learned Labour Court has committed illegality in going beyond the terms of reference. 9. He has also submitted that the appointment of the petitioner was on regular basis after holding the test and against a vacant post of Municipal Council, Hanumangarh. Similarly, the other persons, namely Raj Kumar Pareek, Anil Kumar Gaur and others had been appointed and in all such cases similar procedure, as in the case of petitioner, had been adopted. According to the learned counsel for the petitioner, the other persons so appointed are still in the service with the respondents. In fact, the counsel for the petitioner has submitted that it is the practice of the respondents to regularise the persons so appointed, after the completion of 240 days and it 6 has been done in the case of Anil Kumar Gaur, Nakedar (Annexure-5). 10. The learned counsel for the respondents has supported the impugned award passed by the learned Labour Court. The learned counsel for the respondents has further submitted that the appointment of the petitioner was not in accordance to law and as such his services have rightly been done away with by the respondents, at a later point of time. 11. I have given my anxious consideration to the submissions made by the counsels for the rival parties. In this case, the petitioner was appointed by the Director, Local Bodies (respondent No. 2) after holding a test and against the sanctioned post available in the Municipal Council, Hanumangarh. The petitioner was posted in the office of the Director, Local Bodies wherein the attendance of the petitioner was recorded and thereafter sent to the Municipal Council, Hanumangarh (respondent No. 3), from where he was paid the salary. The service of the petitioner was extended from time to time. Later on, when the services of the petitioner were orally terminated on 24.06.1992, he raised an industrial dispute. The learned Labour Court had adjudicated the matter and passed an award on 04.02.1997. A perusal of the said award (Annexure-9) goes to show that the learned Judge, Labour Court had taken into consideration the terms of reference as well as the facts and circumstances of the case and came to the conclusion that the 7 termination of the petitioner was illegal as being contrary to the provision of the Industrial Disputes Act, 1947. Accordingly, it had directed that the petitioner be reinstated in service, with 70% back wages. Subsequently, on the application of the respondent No. 3, the said ex parte award was set aside and opportunity was granted to the respondents to defend the case. Later on, the learned Judge, Labour Court passed the impugned order dated 09.09.1998 whereby the reference has been answered in the negative by holding that the termination of services of the petitioner by the respondent on 25.06.1992 had been just and valid and therefore he is not entitled to any relief or to receive any amount. 12. A bare perusal of the terms of the reference goes to show that the learned Judge, Labour Court was to adjudicate the question as to whether the termination of the petitioner's services by the Director, Local Bodies and the Municipal Council, Hanumangarh was justified or not and as to what relief he was entitled. But, the impugned award dated 09.09.1998 passed by the learned Labour Court goes to show that it had gone beyond the terms of reference and taken into consideration the question of appointment of the petitioner. Moreover, the learned Judge, Labour Court had itself held that the petitioner had worked for more than 240 days. Therefore, taking into consideration the terms of reference, the learned Labour Court ought to have adjudicated as to whether the termination of the workman was 8 in accordance to the provisions of the Industrial Disputes Act, 1947. 13. Apart from it, it is also to be taken note of that the learned Labour Court while adjudicating the matter under the Industrial Disputes Act, has only to look into the question which has been referred to it. It has primarily to see the dispute raised by the workman and whether the provision of Industrial Disputes Act in respect of termination, in the present case, had been followed by the employer or not. The learned Labour Court was not to go into the question as to whether the appointment had been made in accordance to the procedure and/or by the method given under the rules and regulations. Therefore, the learned Labour Court has, in my considered view, erred in passing the impugned award by going to the question of the appointment of the petitioner. 14. This view finds support in the decision given by the Hon'ble Supreme Court in the case of The Calcutta Electric Supply Corporation Ltd. vs. The Calcutta Electric Supply Workers' Union & Ors., reported in AIR 1959 SC 1191, wherein it was held as under:- “There can be no doubt that in construing the terms of reference and in determining the scope and nature of the points referred to the industrial tribunal, we must look at the order of reference itself.” “In the result we must hold that the tribunals below exceeded their jurisdiction in entertaining a demand which was not the subject-matter of the reference. There can be no doubt that it is only the subject-matter of reference with which an industrial tribunal can deal.” 9 15. Similarly, the Apex Court had held in the case of Delhi Cloth and General Mills Co. Ltd. vs. The Workman and Ors., reported in AIR 1967 SC 469, as follows:- “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.” Further, the Apex Court observed as follows:- “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.” 16. Similarly, in the case of Management of Express Newspapers (Pvt.) Ltd., Madras vs. The workers and Ors., reported in AIR 1963 SC 569, the Hon'ble Apex Court held as under:- “It is hardly necessary to emphasise that since the jurisdiction of the industrial tribunal in dealing with industrial dispute referred to it under Section 10 is limited by Section 10(4) to the points specifically mentioned in the reference and matters incidental thereto; the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the industrial tribunal should be so worded as to leave no scope for ambiguity or controversy.” 10 17. It may be noted that Madras High Court, in the case of Ramamoorthy (W.P.A.R.) & Ors. vs. Tirunelveli District National Plantation Workers' Union & Ors., (1963) 1 LLJ 507, had held as follows:- “Section 10 (4) of the Industrial Disputes Act also makes it clear that where a reference is made to a labour court for adjudication it shall confine its adjudication to the points of dispute referred for adjudication. If the reference was made on an incorrect assumption, as in this case, it was certainly not open to the tribunal, while so holding, to enlarge, by its own choice, the scope of the reference and widen the issues for decision and the field for enquiry including the evidence.” 18. Similarly, the Calcutta High Court in the case of Ganges Rope Employees' Union vs. State of West Bengal & Ors, (1963) 1 LLJ 563, held as under:- “An industrial tribunal has no inherent jurisdiction over industrial disputes and it derives its jurisdiction only from the order of reference by the Government and should not be permitted to travel beyond the plain language of the order of reference. In construing the terms of reference and in determining the scope and nature of the points referred to the industrial tribunal, it must look at the order of reference itself. That is the only subject-matter with which an industrial tribunal can deal.” 19. The High Court of Mysore has held in the case of Workmen, Mysore Paper Mills vs. Management, Mysore Paper Mills, reported in AIR 1970 (Mysore) 212, as under:- “It is settled law that the parties cannot be allowed to challenge the very basis of the dispute set out in the order of reference. The pleadings of the parties can be looked into only to clarify the points of dispute set out in the order of reference; but cannot be allowed 11 to alter the terms of reference or the basis of the reference. There is no doubt that the Tribunal can go into the matters incidental to the dispute. Looking at the reference in this case, from these points of view, the contention of Sri K. Subba Rao cannot be accepted as the contention set forth in the claim statement are not incidental to the main dispute. Further, it would totally alter the scope of the reference. The wordings of the references are clear.” 20. In respect of pleadings of the parties, it has been observed by the Hon'ble Supreme Court in the case of Delhi Cloth Mills (supra) that the parties cannot be allowed to contend that the foundation of the dispute mentioned in the order of reference was something else. Under Section 10 (4) of the Industrial Disputes Act, 1947, the Tribunal is not competent to entertain such a question. 21. In a later case of Pottery Mazdoor Panchayat, vs. The Perfect Pottery Co. Ltd. & Anr., 1979 LIC 827, a Larger Bench of the Hon'ble Supreme Court, in para no. 11 and 16, held as under:- “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 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 12 pretence of closing the business the workers were locked out by the management. The references 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.” “16. We are, therefore, of the view that the High Court was right in coming to the conclusion that the two Tribunals had no jurisdiction to go behind the references and inquire into the question whether the closure of business, which was in fact effected, was decided upon for reasons which were proper and justifiable. The propriety of or justification for the closure of a business, in fact and truly effected, cannot raise an industrial dispute as contemplated by the State and Central Acts.” 22. In a recent decision of the Hon'ble Supreme Court in the case of Mukand Ltd vs. Mukand Staff of Officers Association, (2004) 10 SCC 460, it has been held thus:- “It is, therefore, clear that the Tribunal, being a creature of the reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of reference.” 22. Similarly, view has been given by the Hon'ble Supreme Court in the case of State Bank of Bikaner and Jaipur vs. Om Prakash Sharma, reported in (2006) 5 SCC 123. In para 8 of the said judgment it has been observed that:- “The Industrial Court, it is well settled, derives its jurisdiction from the reference. (See Mukand Ltd. v. Mukand Staff & Officers' Assn.) The reference made to CGIT specifically refers to only one question i.e. “Whether any illegality was committed by the management in giving 13 appointment to one Vijay Kumar in place of the respondent in violation of Section 25-H of the ID Act, 1947?” non-maintenance of any register in terms of Rule 77 of the ID Rules was, thus, not in issue. Before the Industrial Court, the parties adduced evidence. An attempt was made by the respondent herein to show that one Vijay Singh was appointed, although the name of one Vijay Kumar appeared in the reference. An attempt was also made by the respondent to show that Vijay Kumar and Vijay Singh are one and the same person. In fact, one voucher was produced which was allegedly issued in the name of one Vijay Sharma. The said contentions of the respondent were denied and disputed by the appellant herein.” 23. The matter can be looked into from another angle that the award passed by the learned Labour Court earlier on 04.02.1997 had been in accordance to law and after considering the material on record. But subsequently the impugned award passed by the learned Labour Court tantamount to review the earlier award without there being any cogent reason for holding a different view so far as the terms of reference are concerned. The learned Labour Court ought to have adjudicated the dispute raised by the workman in accordance to the terms of reference made to it by the State Government. On perusal of the impugned award, it is more than clear that there was no basis for drawing a contrary conclusion to the earlier one given by the learned Labour Court on 04.02.1997. 24. For the reasons given hereinabove, this writ petition succeeds and it is hereby allowed. The impugned award passed by the learned Labour Court on 09.09.1998 is quashed and set aside. Accordingly, the termination of the petitioner's services is held to be illegal and void. The respondents are directed to 14 reinstate the petitioner in service with 70% back wage. In the fact and circumstance, there shall be no order as to costs. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A.