IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 5923 of 1999 Between: The Sub.Divisional Officer, Telecommunication, Mahaboobnagar-509001. ..... PETITIONER AND 1 Sri K.Krishan, C/o K.Goal, H.No.8-6-139, C/o G.Rangaiah, Padmavathi Colony, Mahaboobnagar. 2 Presiding Officer, Industrial Tribunal II, Hyderabad. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to o issue a writ, or order or directions more particularly one in the nature of mandamus and to declare the award dt.25-9-98 of the Industrial Tribunal II, Hyd. in I.D.No.23/98 on the file of the Industrial-II, Hyd. as being illegal, null and void. Counsel for the Petitioner:MR.R.S.MURTHY Counsel for the Respondent No.1: MR.L.PRABHAKAR REDDY Counsel for the Respondent No.2: MR.M.RATNA REDDY The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.5923 OF 1999 ORDER: Aggrieved by the Award of the Industrial Tribunal-II, Hyderabad in I.D.No.23 of 1998, dated 25.09.1998, the Sub-Divisional Officer, Telecommunications, Mahabubnagar has approached this Court. 2. Facts, in brief, are that earlier the 1st respondent had approached the Central Administrative Tribunal, in O.A.No.644 of 1996, seeking a declaration that he was entitled to be re-engaged as a casual mazdoor under the control of the Telecom District Engineer, Mahabubnagar in terms of the various circular instructions issued by the Director General, Telecom, in his letter dated 21.10.1991 and the Chief General Manager, Telecom, Hyderabad in his letter dated 22.02.1993. The Central Administrative Tribunal, while observing that the action of the petitioner, in not reengaging him the 1st respondent was arbitrary and illegal, held that the 1st respondent herein had worked as a casual mazdoor earlier; that it must be held that he had acquired some experience and that he was fit to be engaged, if there was work in future. On the ground that he had been disengaged way back in 1984, and his long absence from 1984 till he was reengaged could be condoned, the Central Administrative Tribunal held that the 1st respondent herein should be reengaged as a casual mazdoor in future, if there was work in the same unit from where he was last disengaged in preference to freshers from the open market and, if he was going to be reengaged, none who was already in casual service should be disengaged. 3. The 1st respondent, thereafter, raised a dispute and the Government of India vide proceedings dated 23.02.1998, referred the following dispute for adjudication to the Industrial Tribunal: “Whether the action of the Sub-Divisional Officer, Telecom, Mahabubnagar in terminating the service of Sri K.Kishan, ex-casual mazdoor with effect from 01.08.1994 is legal and justified? If not to what relief he is entitled?” 4. Before the Industrial Tribunal, while the 1st respondent herein examined himself as W.W.1, Sri N.V.Prasada Rao was examined as M.W.1 on behalf of the petitioner herein. While the 1st respondent-workman marked W.1 to W.7 documents as exhibits, the petitioner herein chose not to adduce any documentary evidence. The Industrial Tribunal rejected the petitioner’s plea of res judicata holding that the judgment of the Central Administrative Tribunal related to reengaging the 1st respondent as a casual mazdoor; that the matter had been contested on merits and that principles of res judicata were not applicable. The Tribunal upon examining the documentary evidence placed by the 1st respondent-workman accepted his contention that he had worked for 267 days from 01.04.1983 to 31.07.1984. The Tribunal rejected the petitioner’s contention that the 1st respondent-workman worked only for 126 days in the year 1983 and 213 days in the year 1984 and that he had not worked for 240 days in a calendar year. Having held that the 1st respondent- workman had worked for more than 240 days in a calendar year and that his services had been terminated without notice, notice- pay or compensation, the Tribunal further observed that the termination of the 1st respondent-workman was contrary to Section 25 (F) of the Industrial Disputes Act. Accordingly, the order of termination was set aside and the petitioner herein was directed to reinstate the 1st respondent into service and treat his services as continuous in nature. 5. Before this Court Sri R.S.Murthy, learned Standing Counsel for the petitioner, would reiterate the submissions made before the Industrial Tribunal that the order of the Central Administrative Tribunal constituted res judicata and, as such, the Industrial Tribunal could not have entertained let alone adjudicate the dispute. Learned Counsel would contend that the 1st respondent-workman did not work in a single sub-division, but worked in several sub-divisions and that the services rendered by him in each of such sub-divisions must be reckoned separately in determining whether or not he had put in more than 240 days of service. Learned Counsel would further contend that what is required in law is that the workman should have put in 240 days service either in a calendar year and that the 1st respondent had not completed 240 days service in the calendar year 1983 or in the calendar year 1984. He would further contend that the Tribunal had gone beyond the order of reference and had adjudicated upon questions not referred to it. Learned Counsel would point out that, while the dispute referred for adjudication was whether the petitioner herein was justified in terminating the services of the workman from 01.08.1984, the Tribunal had erroneously computed the period of 240 days from 01.04.1983 to 31.03.1984 and not from 01.08.1983 to 31.07.1984 and as such, had acted beyond the scope of reference. Learned Counsel would contend that, in any event, the claim was stale and that the Tribunal could not have granted relief in cases involving such stale claims. Learned Counsel would rely on PONDICHERRY KHADI & VILLAGE INDUSTRIES BOARD V. P.KULOTHANGAN AND ANOTHER {(2004) 1 S.C.C. 68; TALUKA PANCHAYAT, VISNAGAR V. ICHABEN SHIVRAM DAVE {1999 S.C.C. (L&S) 1083}., HARYANA URBAN DEVELOPMENT V. OM PAL {(2007) 2 S.C.C. (L&S) 255}, RAJASTHAN STATE GANGANAGAR S. MILLS LTD. V. STATE OF RAJASTHAN AND ANOTHER {(2004) 8 S.C.C. 161}, and M.P.ELECTRICITY BOARD V. HARIRAM {(2004) 8 S.C.C. 246}. 6. Sri L.Prabhakar Reddy, learned Counsel for the 1st respondent, on the other hand, would contend that the order of the Central Administrative Tribunal was with regards disengagement of the services of the 1st respondent whereas the dispute referred to the Industrial Tribunal related to his termination and, as such, the order of the Central Administrative Tribunal did not constitute res judicata. Learned Counsel would point out that no plea was taken by the petitioner herein before the Industrial Tribunal that the 1st respondent was engaged in different sub-divisions or that his employment during the period 01.04.1983 to 31.07.1984 was in different sub-divisions, or that the period of service rendered by him had to be reckoned separately for each of such sub-divisions. Learned Counsel would further contend that the requirement of completing one year’s service, for claiming protection under Section 25-F of the Industrial Disputes Act, would be satisfied if the workman, in accordance with the requirement stipulated in the explanation to Section 25-B of the Industrial Disputes Act rendered 240 days service in the 12 months period prior to the termination of his services and that it was wholly unnecessary for a workman to have put in 240 days in each calendar year. 7. On the question of res judicata, the Supreme Court in PONDICHERRY KHADI & VILLAGE INDUSTRIES BOARD v. P.KULOTHANGAN AND ANOTHER {(2004) 1 S.C.C. 68}, held that the principle of res judicata operated on Courts; that it was the Courts which were prohibited from trying the issue which was directly in issue in the earlier proceedings between the same parties, provided the Court trying the subsequent proceeding was satisfied that the earlier Court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such Court and that it was only if an issue was directly and substantially in issue in the earlier proceedings, would the earlier proceedings constitute res judicata and prohibit the Court from trying the subsequent proceedings. 8. In EXECUTIVE ENGINEER, ZP ENGG. DIVN. AND ANOTHER v. DIGAMBARA RAO (AIR 2004 S.C. 4839), the Supreme Court observed that while the principal plea of the employees in the writ petition was for regularization of their services, they had also prayed for issuance of a Writ of Mandamus not to discontinue their services as also for payment of arrears of salary and to grant all service benefits, that the said prayer in the writ petition had a direct nexus with the order of termination of their services; that a finding of fact had been arrived that their services had been terminated and that they were not entitled to continue in service and that the legality or otherwise of the said order could not have been the subject-matter of proceedings under the Industrial Disputes Act for the reason that if the employees were not entitled to continue in service by reason of the judgment of the High Court, the question of their reinstatement with back-wages would not arise. 9. As noted above, what was under challenge before the Central Administrative Tribunal was to declare the action of the petitioner herein in not reengaging the services of the 1st respondent-workman, as arbitrary and illegal. Reengagement of the service of a workman would arise only on his services having been terminated earlier. The earlier order of termination was not the subject-matter of challenge before the Central Administrative Tribunal and the workman had merely confined the relief for a direction that his services be reengaged. The question referred for adjudication to the Industrial Tribunal was whether the action of the petitioner herein in terminating the services of the 1st respondent was justified or not. The order of termination which was the subject-matter of dispute before the Industrial Tribunal was not the subject-matter in issue before the Central Administrative Tribunal and, since the issue before the Industrial Tribunal was neither directly nor substantially in issue in the proceedings before the Central Administrative Tribunal, the order of the Central Administrative Tribunal cannot be held to constitute res judicata or to preclude the Industrial Tribunal from trying the dispute referred to it for its adjudication. 10. While Sri R.S.Murthy would place great emphasis on HARYANA URBAN DEVELOPMENT AUTHORITY v. OM PAL {(2007) 2 S.C.C. (L&S) 255} to contend that employment in different establishments could not be clubbed together to determine continuous service under an employer, the fact remains that no such plea was taken by the petitioner herein before the Industrial Tribunal nor was there any evidence adduced by the petitioner herein to substantiate such a non-existent plea. In the absence of any plea being taken before the Industrial Tribunal, I see no justification in examining such a contention raised for the first time before this Court for it is well settled that this Court, while exercising its certiorari jurisdiction, does not sit in appeal over findings of fact recorded by the Industrial Tribunal. This contention must, therefore, be rejected. 11. With regards the contention that the services rendered in a calendar year must alone be taken into consideration, such a contention deserves outright rejection since it is contrary to the express provisions of the Explanation to 25-B of the Industrial Dispute Act, whereunder service rendered for a period of 240 days in the 12 months period preceding the relevant date is reckoned as continuous service for a period of one year. 12. There is, however, substantial force in the contention of Sri R.S.Murthy, learned Counsel for the petitioner that the Tribunal had exceeded the scope of the reference. What was referred for adjudication by the Tribunal was whether the action of the petitioner in terminating the services of the 1st respondent with effect from 01.08.1984 was justified or not. If 01.08.1984 is held to be the date of termination, then in accordance with the Explanation to Section 25-B of the Industrial Disputes Act, the 12 month period of service has to be reckoned backwards and the Tribunal ought to have ascertained whether the 1st respondent had worked for a period of 240 days in the 12 month period from 01.08.1983 to 31.07.1984. The Tribunal, however, held that the 1st respondent had worked for more than 240 days during the 12 month period from 01.04.1983 to 31.03.1984 and has failed to examine whether he had worked for 240 days in the 12 month period from 01.08.1983 to 31.07.1984. The question whether the 1st respondent-workman had worked for 240 days during the 12 month period from 01.04.1983 to 31.03.1984 was beyond the scope of the reference, and was not a matter which the Tribunal could have made the basis of its order. The Tribunal has clearly exceeded its jurisdiction and has travelled beyond the scope of the reference. The award of the Tribunal must be set aside on this short ground. 13. Sri R.S.Murthy, learned Counsel for the petitioner would, however, insist that this Court also record its conclusions on his plea of delay and latches. While it would be wholly unnecessary for this Court to do so, since the writ petition is allowed and the Award of the Industrial Tribunal is set aside on the ground that the Tribunal has exceeded its jurisdiction, and has gone beyond the scope of the reference, it would suffice to note that delay by itself does not bar the Tribunal from entertaining the dispute referred to it for its adjudication and the question of delay is but one of the factors to be taken into consideration by the Tribunal in moulding the relief, if any, granted to the workman. On the facts and circumstances of each case the Tribunal, taking into consideration the delay on the part of the workman in approaching it, or in raising a dispute, can either deny the relief to the workman or mould the relief accordingly. Since the Tribunal has not examined this question of delay, I see no reason to do so in certiorari proceedings under Article 226 of the Constitution of India. 14. The Award of the Industrial Tribunal is set aside. The matter is remanded back and the Tribunal shall adjudicate the dispute referred to it strictly in accordance with the terms of the reference. Since the dispute is more than a decade old, it is but appropriate that the Tribunal decides the matter as expeditiously as possible, in any event not later than four months from the date of receipt of a copy of this order. 15. The Writ Petition is disposed of accordingly. However, in the circumstances, without costs. ______________________________ RAMESH RANGANATHAN, J. Date: 03.07.2008. GS