IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SIXTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE SANJAY KUMAR WRIT APPEAL NO : 1718 of 2000 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated ______ in WP NO : 7929 OF 2000 on the file of the High Court.) Between: ..... APPELLANT AND .....RESPONDENT Counsel for the Appellant:ADVOCATE GENERAL Counsel for the Respondent No.: MR.B.G.RAVINDER REDDY The Court made the following : THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1718 OF 2000 JUDGMENT: (Per SK,J) Aggrieved by the Order dated 06.06.2000 in W.P.No.7929 of 2000, the unsuccessful petitioners are before us in Appeal. By the said order, the learned single Judge affirmed the Award dated 29.09.1999 passed by the Industrial Tribunal-II, Andhra Pradesh, Hyderabad (for brevity, ‘the Tribunal’), in I.D.No.68 of 1998 (Old I.D.No.116 of 1996 on the file of the Labour Court-III, Hyderabad), a reference under Section 10(1)(c) of the Industrial Disputes Act, 1947 (for brevity, ‘the Act of 1947’). The Andhra Pradesh Village Development Officers Training Centre Labour Union (for brevity ‘the Labour Union’), and 29 individual workmen, the respondents herein, raised an Industrial dispute with regard to regularization of their services stating that they had put in individually between 12 to 27 years of continuous service in the Andhra Pradesh Village Development Officers Training Centre (for brevity ‘the Training Centre’). The issue was referred to the Assistant Commissioner of Labour for conciliation but upon failure of such efforts, the matter was referred under Section 10(1)(c) of the Act of 1947 for adjudication. The terms of the reference were as hereunder: “Whether the A.P.Village Development Officers Training Centre Labour Union is justified in demanding the Regularistion of the following 29 Casual Workers? 01) L.Kistaiah 16) P.Laxmamma 02) N.Babaiah 17) P.Laxmi 03) B.Sudershan 18) K.Swaroopa 04) R.Chandraiah 19) P.Ettamma 05) K.G.Narsimha 20) C.Satyamma 06) B.Yellaiah 21) R.Narasamma 07) T.Yellaiah 22) K.Venkatamma 08) K.Laxmaiah 23) K.Bheemamma 09) C.Mallamma 24) M.Narayana 10) N.Anjamma 25) D.Lalitha 11) M.Ramulamma 26) B.Padmamma 12) P.Sayamma 27) K.G.Susheela 13) M.Chennamma 28) M.Anasuya 14) K.Satyamma 29) B.Kamalamma 15) A.Laxmamma If so, what relief are the workmen entitled to?” It was admitted during the course of the proceedings before the Tribunal that the dates furnished in the claim statement with regard to the year of appointment of the above 29 workmen were true and correct. As per the said details, some of the workmen were appointed as long back as in the years 1965, 1968, 1969 and 1972. In fact, the last appointment amongst them was in the year 1984. It was the case of these workmen that they rendered work which was of a permanent nature continuously for the past several years ranging individually, between 12 to 27 years. In spite of the same, their complaint was that the appellants had not taken any steps to regularize their services. The Training Centre filed a counter before the Tribunal denying the allegations made in the claim statement. It was alleged that the Training Centre was not an ‘Industry’ for the purpose of the Industrial Disputes Act, 1947. It was further alleged that the workers were never appointed on a permanent or a consolidated monthly wage basis. As per the counter, the workers put in service only for a few days in each month of any particular year. On these grounds, their claim for regularization was categorized as unjustified and lacking in bona fides. At the same time, it was admitted by the Training Centre that it had addressed the Government of Andhra Pradesh to accord sanction for five permanent posts in the category of Mazdoors. Reference was made to exchange of correspondence between the Training Centre and the Government between the years 1973 and 1991 in this regard. The Labour Union and the workers examined 24 witnesses and marked 4 exhibits while two witnesses were examined by the appellants and 9 exhibits were marked on their behalf. The Tribunal, upon consideration of the material, record and evidence placed before it, came to the conclusion that the Training Centre used to utilize the services of the 29 workmen in rotation and did not employ all of them everyday. Accordingly, the Tribunal held that there was regular work for at least five persons in the Training Centre and that the Government has to sanction five posts as requested by the Training Centre itself. Five of the workmen, namely, (i) N.Anjamma (Sl.No.10), (ii) K.Venkatamma (Sl.No.22), (iii) K.Bheemamma (Sl.No.23), (iv) M.Anasuya (Sl.No.28) and (v) B.Padmamma (Sl.No.26) were held disentitled to any relief in this regard as they were not examined. The Tribunal, by its Award, directed the Government of Andhra Pradesh, the third appellant, to sanction five posts in the cadre of Mazdoors in the Training Centre and to absorb the five senior most persons in the list of workers shown in the claim statement. The Training Centre was further directed to absorb other workers as per their seniority shown in the said list as and when vacancies arose in the category of Mazdoors. The Training Centre was also permitted to address the third respondent in the event it felt the necessity of the services of more number of Mazdoors and upon such an eventuality, the third respondent was directed to sanction additional posts if it was satisfied with the requirement for the same. This Award was the subject matter of challenge in W.P. No.7929 of 2000. The learned single Judge at the stage of admission, dismissed the writ petition by order dated 06.06.2000 holding that it was open to the Tribunal to alter the conditions of the contract of service, being a characteristic peculiar to Industrial jurisprudence. The learned Judge therefore found no legal infirmity in the Award of the Tribunal directing the Government to sanction five posts and further directing that the five senior most workers be absorbed therein. Thereupon, the present Writ Appeal. We have heard Sri A.Satya Prasad, learned Special Government Pleader, representing the learned Advocate General for the State of Andhra Pradesh, appearing for the appellants and Sri B.G.Ravinder Reddy, learned counsel appearing for the respondents. Sri A.Satya Prasad strenuously contended that it was not open to the Tribunal to travel beyond the terms of the reference made under Section 10(1)(c) of the Act of 1947 and issue positive directions to the State to create new posts. He further contended that the preliminary issue with regard to the Training Centre not being an ‘Industry’, had been overlooked by the Tribunal in the first instance and thereafter, by the learned single Judge. The Judgment of the Supreme Court in MUKAND LTD. v. MUKAND STAFF & OFFICERS’ ASSN.[1] was relied upon in support of the contention that the Tribunal cannot adjudicate matters beyond the purview of the disputes referred to it. Per contra, Sri B.G.Ravinder Reddy contended that the Tribunal, being seized of the entire issue pertaining to the grievance raised by the respondents, which led to the reference, was well within its rights in exercising its discretion in granting the relief keeping in mind the facts and circumstances of the case. He therefore asserted that the Award of the Tribunal did not call for any interference by this Court and that the Writ Appeal was devoid of merit. The Tribunal, being a creature of the statute viz. the Act of 1947, is vested with specific jurisdiction when it entertains a reference under Section 10(1)(c) of the Act of 1947. It’s jurisdiction in such a case would be circumscribed by the terms of the reference. The Tribunal cannot go beyond the terms of the reference, per Chandrachud, C.J. in POTTERY MAZDOOR PANCHAYAT v. PERFECT POTTERY CO. LTD. AND ANOTHER[2]. In the present case, the terms of the reference required the Tribunal to answer as to whether the Labour Union was justified in demanding regularization of the 29 workmen. The Tribunal was not called upon to work out as to how such regularization should be effected. Thus, the direction of the Tribunal with regard to creation of new posts by the Government of Andhra Pradesh and the methodology with regard to the absorption of the workmen was patently beyond the scope of the terms of the reference. The Tribunal compounded this error by permitting the Training Centre to seek sanction for additional posts from the Government as and when it thought fit. Such directions, even in the normal course, would be beyond the ken of judicial adjudication. Sanction and creation of posts is solely within the realm of the policy maker. In this regard, reference may be made to the Judgment of the Supreme Court in COMMISSIONER, CORPORATION OF MADRAS v. MADRAS CORPORATION TEACHERS’ MANDRAM AND OTHERS[3], wherein the Supreme Court reiterated that it is a well settled legal position that it is the legal or executive policy of the Government to create a post and that the Court or Tribunal is devoid of power to give such directions. We are therefore of the opinion that the Tribunal overstepped its bounds in directing creation of five new posts for absorption of the five senior most workmen from amongst the 29 workmen named in the claim Statement. However, we are not inclined to accept the argument of Sri A.Satya Prasad that the Training Centre does not fall within the four corners of “Industry” as defined in Section 2(j) of the Act of 1947. Section 2(j) defines “Industry” to mean any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment handicraft, or industrial occupation or avocation of workmen. In the present case, the facts established before the Tribunal clearly demonstrate that the Training Centre, being an educational institution, employed the services of the workmen in the agricultural and dairy farms. The Training Centre was under the administrative control of the Panchayat Raj and Rural Development Department of the Government of Andhra Pradesh. It is also brought out that the agricultural, horticultural and dairy units established by the Training Centre were used for the purpose of demonstrations for the Trainee Village Development Officers. The services of the workmen were utilized in this process and it is also admitted that the produce from these agricultural, horticultural and dairy units was sold and the revenue therefrom was being remitted to the Government. This organized and lucrative activity undertaken by the Training Centre, which was admittedly an educational institution, clearly falls within the term “undertaking” and would qualify as an “Industry” under Section 2(j) of the Act of 1947. Sri A.Satya Prasad further contended that once his argument that the Tribunal exceeded its jurisdiction in giving a positive direction was accepted, the proper course would be for this Court to remit the matter back to the Tribunal for fresh consideration. We are not inclined to accept this submission. It is noticed that the issue has been kept pending for a sufficiently long time and the interest of justice requires that a quietus be given to the matter so that the hapless workmen are not made to run from pillar to post again in search of justice. The words of P.B.Gajendragadkar,J in J.K. COTTON SPINNING AND WEAVING MILLS CO. LTD. v. LABOUR APPELLATE TRIBUNAL OF INDIA[4] are apposite of quotation: “In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice: vide Messrs. Crown Aluminium Works v. Their Workmen, 1958 SCR 651 : (AIR 1958 SC 30) and State of Mysore v. Workers of Gold Mines, 1959 SCR 895 : (AIR 1958 SC 923). Indeed, the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, or one-sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal to socio-economic equality and its aim is to assist the removal of socio-economic disparities and inequalities; ………” In exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India it is open to this Court to mould the relief so as to subserve the interests of social justice instead of adopting a hyper- technical approach, requiring the remand of the matter for fresh consideration. As stated supra, the Tribunal, in effect, answered the reference made to it under Section 10(1)(c) of the Act of 1947 by holding that 24 out of the 29 workmen were entitled to regularization of their services. Having held so, the Tribunal in its enthusiasm to do justice overstepped its jurisdiction and issued a positive direction with regard to creation of new posts, which is unsustainable in law. This portion of the Award can be separated from the finding of the Tribunal on merits, after due consideration of the facts and material on record, that the Labour Union was justified in seeking regularization of the services of 24 out of the 29 named workmen. The modalities of the regularization of their services are to be left to the appellants and it is neither the concern of the Tribunal nor is it the concern of this Court. Having utilized the services of these workmen for decades together, it is not open to the welfare State to turn its back upon them and deny them the benefit of regularization of services by harping on technicalities. The Writ Appeal is therefore disposed of setting aside the directions issued by the Tribunal in its Award dated 29.09.1999 in I.D.No.68 of 1998 requiring the Government of Andhra Pradesh to sanction five new posts and further directing the first respondent-the Andhra Pradesh Village Development Officers Training Centre to absorb five senior most workmen therein and to address the Government of Andhra Pradesh for further additional posts in the event of it feeling the necessity to do so. The Award shall be construed to have answered the reference by holding that 24 out of the 29 named workmen in the reference are entitled to regularization of their services. The appellants shall take appropriate measures to regularize the services of these persons expeditiously as per their seniority. In the circumstances of the case, we are not inclined to make any order as to costs. ___________________ V.ESWARAIAH, J. ____________________ SANJAY KUMAR, J. _______ April, 2009. VGSR [1] (2004) 10 SCC 460 [2] (1979) 3 SCC 762 [3] (1997) 1 SCC 253 [4] AIR 1964 SC 737, Para 19