IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18/02/2004 CORAM THE HON'BLE MR.JUSTICE N.DHINAKAR AND THE HON'BLE MR.JUSTICE D.MURUGESAN WRIT APPEAL No. 465 of 2001 The General Manager Indian Overseas Bank, Central Office 763, Anna Salai, Chennai-2 ..Appellant -Vs- 1. The Presiding Officer, Industrial Tribunal Chennai 2. The Workmen rep. by the President, All India Overseas Bank Employees Union, 602, Anna Salai, Chennai-2 ..Respondents Writ Appeal is preferred under Clause 15 of the Letters Patent against the Order passed by a Learned Single Judge in W.P.No.12015 of 2000 dated 25.1.2001. !For Appellant :: Mr.N.R.Chandran Advocate General for M/s.T.S.Gopalan & Co., ^For respondents:: Mr.K.Chandru, S.C., for Mr.C.R.Chandrasekaran :JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN,J.,) The All India Indian Overseas Bank Employees Union raised an Industrial Dispute in as to the service conditions of Jewel Appraisers working in Indian Overseas Bank. The Central Government by order dated 19 .2.1990, referred the said dispute to the Tribunal for the following adjudication by the tribunal:- "Whether the demand of All India Overseas Bank Employees Union to treat the jewel appraisers engaged by their bank as part time workmen of the bank is justified? If so, to what relief if any are they entitled? 2. The said dispute was raised basically on the following averments: The appellant bank employed about 767 jewel appraisers mainly in the rural branches in the State of Tamil Nadu, Pondicherry, Andhra Pradesh, Karnataka, Kerala and few branches of the Bank in Bihar and Orissa States. The appellant bank advances agricultural jewel loans to its constituent and to few members of the staff. These jewel appraisers are employed for particular branches of the appellant bank and are also utilised for certain clerical jobs, like entering Applications for Jewel Loans. They are also asked to go to the other branches for verification as to the appraisal of the jewels. According to the respondent-Union, these jewel appraisers are necessarily to be present in the respective branches between 10.00 a.m., and 2.00 p.m., as a request for jewel loan is considered and granted only during that period. They are paid a commission of Rs.3/= for every Rupees One Thousand sanctioned by way of loan. 3. It is further averred that similarly placed Jewel Appraisers numbering about 353 in Indian Bank with similar terms and conditions, raised a dispute for payment of wages which was adjudicated in I.D.No:2 5 of 1997. In view of the rival submissions, we extract the relevant portion of the reference in that case. "Whether the action of the Management of the Indian Bank, Madras in denying to appraisers wages and other conditions of service applicable to rural clerical "Award Staff" of the Bank is justified? If not to what relief the workmen concerned are entitled to? 4. The reference was made on the ground that the jewel appraisers of Indian Bank were workmen and they were denied only wages and other service conditions as they were paid monthly remuneration of Rs.100/=. The said dispute was adjudicated and an award was made on 3.12.19 79 holding that the jewel appraisers of Indian Bank are entitled to wages and other conditions of service applicable to regular clerical award staff as part time employees of the bank and they would be entitled to such proportionate (namely half) wages and benefits of clerical staff with effect from 1.4.1977, namely, the date of the reference. This award was questioned by the management of the Indian Bank. The Writ Petition (W.P.No.1947 of 1980) was dismissed by upholding the award in the judgment reported in 1986 (II) MLJ 59. The judgment of the learned Single Judge was again taken on appeal in W.A.No: 330 and 350 of 1986 before a Division Bench and the same was dismissed by judgment dated 3.5.1990. The Special Leave Petition No.10054 of 1990 filed at the instance of the Indian Bank was also dismissed at the admission stage on 10.10.1990 by the Supreme Court. According to the respondent-Union, in view of the award passed in the case of the jewel appraisers of the Indian Bank for payment of salary on par with part time employees, they are also entitled to the same benefit. 5. This claim of the Union was resisted by the appellant Indian Overseas Bank basically on the following three grounds:- (i) that the jewel appraisers engaged by the appellant bank are not "workmen" as defined under section 2(s) of the Industrial Disputes Act. To support the above ground, the appellant bank heavily relied on the order of the Apex Court reported in 1992 (II) LLJ page 6 ( Management of Puri Urban Cooperative Bank Vs. Madhusudan Sahu and another). (ii) that the appellant-bank has its rural branches in various states of Tamil Nadu, Pondicherry, Andhra Pradesh, Karnataka, Kerala and has few branches in Bihar and Orissa and therefore the adjudication is possible only by a National Commission under section 17.B of the Industrial Disputes Act and not by the Industrial Tribunal before whom the dispute is referred. We hasten to add that this point though raised was not pressed and therefore the same was not discussed and no finding is rendered by the tribunal. Equally the same was not raised before us. (iii) The terms and conditions of the jewel appraisers of Indian Bank are entirely different with the terms and conditions of the jewel appraisers of the appellant Indian Overseas Bank. For the purpose of entitlement, more particularly, on the basis of reference, no analogy can be drawn to the award and the consequential orders of the court passed in the case of jewel appraisers of Indian Bank. 6. On the basis of the above rival pleadings, the tribunal adjudicated the reference. On behalf of the Union representing the workmen, 4 witnesses, namely, WW-1 to WW-4 were examined and Exhibits W.1 to W.2 4 were marked. On behalf of the appellant-Bank, two witnesses were examined namely MW.1 and MW.2 and Exhibits M.1 to M.14 were marked. 7. The tribunal applying the judgment rendered in Indian Bank's case as in its view the judgment in Puri Urban Cooperative Bank's case is an isolated case, ultimately answered the reference in the affirmative. The tribunal also went into comparative terms and conditions of service of Jewel Appraisers of Indian Bank and Indian Overseas Bank, namely the appellant-Bank to arrive at its conclusion. The tribunal also awarded that "the jewel appraisers should be paid half wages and benefits of a clerical staff as paid in the Indian Bank and once the jewel appraisers are declared to be entitled to get such remuneration, they cannot demand for payment of commission on the basis of loan sanctioned by the Bank as per the terms and conditions of the earlier agreement". The tribunal further awarded that "it is open to the bank to frame necessary rules fixing the service conditions of the jewel appraisers in view of the changed circumstances and it is also open to the bank to fix the nature of duties to be performed by them in view of the fact that they have been declared to be entitled to get remuneration as part time workers." 8. The above award was questioned by the respondent-Union in so far as it was aggrieved with that portion of the award declining to give effect to the relief from 1.4.1978 i.e, the date of demand and the failure to order payment of 90% of wages and benefits of clerical staff in the Bank. Simultaneously, the appellant-Bank also questioned the award in W.P.No.12015/2000 in respect of the entirety of the award. The learned Single Judge by order dated 25.1.2001 dismissed both the writ petitions. It must be pointed out at this stage that as against the the order of dismissal of the writ petition filed by the Union no Writ Appeal is filed. The present Writ Appeal preferred by the appellant bank is in respect of the order passed in W.P.No.12015 of 2000. 9. The learned Single Judge while considering the award came to the conclusion that the true dispute referred for adjudication was not actually been adjudicated, i.e.,the actual reference as to whether the demand by the Union to treat the jewel appraisers engaged by the bank as part time workmen of the bank is justified or not was not adjudicated and instead the Tribunal went into the question as to whether the jewel appraisers engaged by the appellant bank are workmen or not. Though the Learned Judge came to such conclusion, in view of the fact that the issue is pending before the courts for over a period of 26 years, the learned Single Judge did not deem it fit to remand the matter again for fresh adjudication, but ventured to go into the rival claims based upon the pleadings and the evidence available before the tribunal and decided the issue. 10. According to the learned Single Judge, the terms and conditions of service and nature of work, would lead to the only conclusion that the jewel appraisers engaged by the appellant-bank could be treated as part time workmen, and the judgment rendered in Indian Bank case would be of benefit to them to get a favourable award on the reference. 11. The learned Single Judge also took the similar view as the tribunal has taken in regard to the non-applicability of the judgment of the Apex Court in Puri Urban Cooperative Bank's case by holding that it is an isolated case and has applied the judgment made in the case of jewel appraisers of Indian Bank. This order of the learned Single Judge is questioned in this Writ Appeal. 12. Mr.N.R.Chandran, learned Advocate General appearing for the appellant-bank would basically attack the award of the tribunal as well as the order of the learned Single Judge basically on the following grounds:- (i) Inasmuch as the reference is only in respect of the question whether the demand of the Union to treat the jewel appraisers of the appellant bank is justified or not, the tribunal ought not to have gone beyond the scope of the reference by directing absorption of the workmen. (ii) The tribunal erred in applying the judgment made in Indian Bank case as the terms and conditions of service of jewel appraisers of both the banks are different and consequently the tribunal ought to have applied the judgment of the Puri Urban Cooperative Bank's case reported in 1997 (II) LLJ page 6. (iii) The award passed by the tribunal, as affirmed by the Learned Single Judge cannot be sustained, as the members of the respondentunion are not "workmen" within Section 2(s) of the Industrial Disputes Act. What is relevant for bringing a person under the definition of " workman" is the manner and control of the work and in the absence of any evidence to sustain the plea as to the manner and control over the jewel appraisers by the management and the jewel appraisers are free to appraise the jewels and certify to the Manager for sanction of loan, there is no scope to bring the jewel appraisers under the definition of "workman" under section 2(s) of the Industrial Disputes Act. 13. The learned Advocate General after drawing our attention to certain portions of the evidence let in both on behalf of the workmen and the appellant bank, submitted that the evidence do not disclose the relationship of "master" and "servant" to treat the jewel appraisers as part time worker of the appellant bank. He would further add that the award popularly known as "Sastri Award" does not provide a category of part time employee and in the absence of the same, the award and the consequential order of the learned Single Judge would amount to creation of posts which does not find a place in the Sastri Award. 14. In controverting the above submissions, Mr.K.Chandru, learned senior counsel appearing for the respondent-union submits that the appellant bank is not justified in raising a question, namely, the reference in the Indian Bank case and the Indian Overseas Bank case namely, the present case, are different, as such a question was neither raised, nor adjudicated before the Tribunal and a decision was rendered. He would also submit that the said ground was not also raised before the learned Single Judge, and that it is not open to the appellant-bank to raise the question at the appellate stage. 15. In any case, Mr.K.Chandru, the learned senior counsel would submit that in terms of the definition of Section 2(k), relating to terms of employment, the reference in the Indian Bank case was made by the jewel appraisers themselves under section 10(1)(d) of the Industrial Disputes Act and the case in our hand is a reference made under section 10(2) of the Act, a joint reference at the instance of the Union. Only in the said circumstances, the term of reference in the Indian Bank case and the present case are differed. He would submit that in any case, what is relevant for consideration while adjudicating the reference is the pleadings. He would submit that when a joint reference is permissible as held by the judgment reported in 1973 (1 ) LLJ 273 (Vallamalai Estate Vs. Workmen of Vallamalai) and upheld in 1977 (I) LLJ 343 (Indian Bank Vs. Industrial Tribunal) the difference in reference cannot be given much weightage to deprive the claim of the workmen. He would submit that when a reference is made, the tribunal is bound to find out the real dispute in controversy and adjudicate the same. To support the said submission, the learned senior counsel would rely upon the judgments reported in 1953 (I) LLJ 174(State of Madras Vs. C.P.Sarathy) and 1967 (I) LLJ 423(Delhi Cloth and General Mills Ltd.,Vs. Their Workmen and others). 16. He would also rely upon a Division Bench judgment of this court in 1979 (I) LLJ 465 (D.B) (Management of Addison & Co., Vs. the Presiding Officer, Labour Court, Madras and others) in this regard as well as the judgment of the Supreme Court in 1978 (II) LLJ 11 (Indian Express Vs. Employees Union). Placing reliance on the above judgments, the learned senior counsel submitted that there is nothing wrong in the tribunal in going into the rival pleadings as contained in the claims statement and the counter affidavit an d pass an award on the basis of the same, but in conformity with the reference. He would submit that the power of the tribunal is wider in passing the award and in that event the tribunal was right in answering the reference in the affirmative as well issuing the consequential directions. In this regard, he would refer to the judgment in W.I Automobile Association Vs. Industrial Tribunal, Bombay, reported in AIR 1949 Federal Court, 1 11. 17. The learned senior counsel would submit that in so far as the question of workmen, what is relevant is the nature of duties and responsibilities entrusted to a workman and also the indispensableness of the person employed in the nature of business. Merely because a person employed is not asked to attend the full office hours and is not asked to make any application for leave and he is allowed to go from the office after his job is over, that will not disentitle the said person from claiming himself to be an "workman" as defined under section 2(s). In this regard he would rely upon the following judgements:- (i) 1957 SCR 152 (SC) 152 (Dharangadhara Chemical Works Ltd., Vs. State of Saurashtra) (ii) 1973 (II) LLJ 495 (SC) (Silver Jubilee Tailoring House Vs. C.I. Of Shops & Estates) (iii)1974 (I) LLJ 367 (S.C) (Mangalore Ganesh Beedi Works. Vs. Union of India) (iv) 1978 (4) SCC 257 (Hussainbhai, Calicut Vs. The Alath Factory, The Zhilali Union, Kozhikode and others) and (v) 1999 (I) LLJ 1086 (Secretary, Haryana State E.B., Vs. Suresh & others) 18. In so far as the contention of the Learned Advocate General as to the applicability of the judgment in Puri Urban Cooperative Bank's case, the learned Senior Counsel would submit that it was an isolated case of termination of an employee. The Apex Court has considered only the question of termination of an individual employee. On the other hand, the issue in the jewel appraisers of Indian Bank was in respect of the entire jewel appraisers of the said Bank and the law laid down in the said case alone would be more appropriate for applying to the case of the workmen in this case. Hence he would submit that neither the tribunal, nor the learned single Judge have erred in applying the judgment rendered in Indian Bank's case. 19. In so far as the nature of appointment, terms and conditions of employment and service and the responsibility of jewel appraisers, the learned senior counsel also drew our attention to certain portions of the evidence let in by the Union as well as by the appellant-bank and contended that the bank's control over the jewel appraisers is vested in the Managers in appraising the jewels including the manner in which the jewel is appraised. By placing reliance on the evidence, the learned senior counsel would submit that the jewel appraisers of Indian Overseas Bank are "workmen" under section 2(s) and therefore there is nothing wrong in the tribunal in answering the question in the affirmative. 20. Mr.N.R.Chandran, learned Advocate General by way of reply would once again reiterate that the law declared in respect of one case is not automatically made applicable to other case as the same should be applied only on the facts of each case. He would submit that though the Apex Court on the facts of the case found that Canteen workers of Indian Overseas Bank were held to be workmen in the judgment reported in 2001 (I) LLJ 1618, considering the terms and conditions of service, the Apex Court also found that the canteen workers employed in the State Bank of India, are not workmen in the judgment reported in 2001 (I) LLJ 1441. Similarly, the learned Advocate General submitted that the Apex Court has held that canteen workers of Reserve Bank of India are not workmen in the judgment reported in 1996 (II) LLJ 42. 21. We have given our anxious consideration to the rival submissions. In so far as the challenge to the reference itself, we are not inclined to accept the said submission for the simple reason that the said point has not been raised either before the Tribunal or before the Learned Single Judge. In fact, we have perused the counter statement filed by the appellant-bank before the tribunal and we are unable to trace out such a ground in the said counter. That apart, that issue was not argued before the tribunal and hence there was no adjudication. Again, on a perusal of the number of grounds raised in the writ petition, we do not find either any such ground has been raised or argued before the learned Single Judge. We afraid that in the absence of the same, the appellant-bank could be allowed to raise the said question at this stage. 22. Be as it may, the reference made in the case of the jewel appraisers of Indian Bank could be traced to Section 10(1)(d) of the Industrial Disputes Act. Section 10(1)(d) relates to a reference of an " industrial dispute" to the Tribunal when it relates to any matters specified in the II schedule or III schedule for adjudication. This dispute is referable at the instance of the workman aggrieved concerned. In that context only, when a dispute was raised as to the wages, a reference was made to treat the jewel appraisers of Indian Bank as workmen for payment of wages on par with the part time or with other employees of the bank. In our case, the dispute was raised by the All India Overseas bank Employees Union, representing the workmen. This dispute is referable to Section 10(2) of the Industrial Disputes Act, namely a joint dispute. Such a dispute in respect of jewel appraisers at the instance of the Union is possible in view of the definition of "industrial dispute" as defined under section 2(k) of the Act. The said definition reads as under:- "2(k) "Industrial dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non employment or the terms of employment or with the conditions of labour, of any person" 23. In that context only, the dispute was referred by the Government for adjudication as to the demand of the Union to treat the jewel appraisers as part time workmen, was justified or not. Further, whether a joint reference is possible or not came up for consideration before a Division Bench of this Court in Vallamalai Estate Vs. Workers of Vallamalai, reported in 1973 (I) LLJ 273. K.Veerasami, Chief Justice (as he then was) speaking for the Bench held in para 4 as follows:- "4. We are clear therefore that the Presiding Officer's jurisdiction being entirely basically depending on an existing or an apprehended industrial dispute, the appellant was not estopped in this case from contending lack of jurisdiction in presiding over notwithstading that the reference was made on a joint application under section 10(2) of the Industrial Disputes Act." 24. In fact, in that case, though the dispute was raised by workmen, in view of the fact that it can be treated as a joint application by the workers, the Division Bench held that such dispute though made under Section 10(1)(d), could be treated as a joint dispute under section 10(2) of the Industrial Disputes Act. 25. From the above judgment, we find that joint dispute raised under section 10(2) of the Act can be the basis for adjudication on a reference as it is pointed out before us that the second respondent-Union has membership of 18000 employees, out of which, jewel appraisers represent 700. 26. Coming to the question as to whether the power of the tribunal in adjudicating a dispute, strictly in terms of reference, Courts have held that a reference is primarily a cause for adjudication by the Labour Court or tribunal, as the case may be, and that does not mean the Labour Court or Tribunal is disentitled from looking in to the pleadings and to find out the real dispute for adjudication. This power of the Tribunal is based on the principles to render substantial justice to the parties coming to the court for adjudication. It is relevant to refer to the Division Bench judgment of Patna High Court in Minimax Vs. its Workmen, reported in 1968 (I) LLJ 369, as to the power of the Tribunal in adjudication. The relevant portion reads thus:- "It is significant to note that the point in issue, with which we are concerned in this case, has been referred in more or less identical terms as recommended by the Assistant Labour Commissioner, Jamshedpur. Therefore, the finding of the tribunal as to what was really the dispute and the demand of the workmen is not only supported by the pleadings before the tribunal, but also by the report on which basis the reference in question has been made. Sri Lal Narayan Sinha also has not challenged the correctness of the finding of the tribunal as to what was really in dispute between the parties. What he has challenged is the jurisdiction of the tribunal to construe the reference so as to bring out the real dispute for its decision. That the Tribunal not only has such power but a duty is cast on it to find out what was the real dispute which was referred to it and to decide it and not to throw it out on mere technicality, finds ample support from the following observations of their Lordships of the Supreme Court in the case of State of Madras Vs. C.P.Sarathy and another (1953(I) LLJ 174 ). "The scope of adjudication