..PETITIONER BEFORE THE HON'BLE HIGH COURT OF MADHYA PRADE J A B A L P U R Writ Petition No§0zp q/99 Chhattisgarh Distillery (Now known as Kedia Castle Delleon Industries Ltd.) Kedia Nagar, Village Khapri, Post Kumhari, Disoiict Durg (M.P.) Through its constituted attorney P.C.Chourey, Resident o£ 16/2, South Tukoganj, Indore.... v/s l) General Secretary, Chhattisgarh Chemical Mill Majdoor Sangh, Rajnandgaon (M.P.); Industrial Court (Bench) 'Krishna Sadan', l6-H.I.G., Shankar Nagar, Raipur (M.P); 3) State of Madhya Pradesh, Through Secretary, Department of Labour, Vallabh Bhawan, Bhopal (M.P;)... ... RESPONDENTS WRIT PETITION UNDER ARTICLES 226/ 227 OF THE CONSTITUTION OF INDIA SH General Secretary J\ Hon’ble the Chief Justice E}, gu‘z{a a,» Swh (mkfhwmm Sd/— ‘ fSum‘l Kumar Sinha I Judge Post for 7 07.2005 Sdl- Sunil Kumar Sinha Judge HIGH COURT OF CHHATTISGARH AT BILASPUR \ W.P. No.5064 of 1999 Chhattisgarh Distillery Vs. Mill Majdoor , Sang}: Chhattisgarh and others Chemical .j: W\ UDGMENT For oon§ideration d x M. gavv HIGH COURT OF CHI-IATTISGARH AT BILASPUR (DIVISION BENCH) Coram : Hon’ble Mr. A.K. Patnaik, C.J., “ I-Ion’ble Mr. Sunil Kumar Sinha, J W.P. No.5064 of 1999 Chhattisgarh Distillery Vs. General Secretary , Chhattisgarh Chemical Mill Majdoor Sangh and others Appearance: Mr. A.M.Mathur, Senior Advocate, Mr. R.K.Gupta, and Mr.Rohit Arya, Srem'or Advocates with Shri Abhishek Sinha, Advocate for the petitioner. Mr.Sujoy Paul, Advocate with Mrs. Bhaxadwaj, for respondent no. 1. Mr.V.V.S.Mu11hy, Deputy Advocate General for respondent no.3] State of Chhattisgarh. JUDGMENT (Delivered on % July 2005) Sunil Kumar Sinha, J, This writ petition has been nled for quashing the award dated 16.10.1999 passed by the State Industrial Court, M.P., Bench Raipur under sec1ion 51 of the M.P. Industrial Relations Act 1960 (Act 27 of 1960) in Reference Case No.10/MPIR Act/ 1996. (2) Brief facts of the case are that the petiiioner is a Public Limited Compaxly, registered under Indian Companies Act 1956, having a factory in village Khapri, P.O. Kumhari, District Durg (CG). The said Company manufactures potable alcohol and supplies tothe State Government under the Excise Act. On being satisfied about existence of an industrial dispute regarding services of the employees iepresented through the respondent union, in between the petitioner and the said employees, the State Government made a reference u/s 51 of M.P. Industn'al Relations Act 1960 (hereinafter referred to as “the Act”) to the Industrial Court, Raipur on 26.02.1993 for its adjudication] arbination. The terms of the reference are as under: (3i) mwinaeiaigadmwme? meantimmnxmuetfaaw WWWQ'HEWfIW airwfiiéadtWW? wWmhawWmmmo dawnedmmnwftaw Wmmmmm%? @anmwatmnwnte mmW? WWWtWWW Wnmamamawemdaéia‘r waaaiamnwniwdtm new? Wy— (3) After service of the notice to the parties, a preliminaly objecu'on was filed by the petitioner on 27.4.1993. It was mainly contended vide the said preliminary objection that the provisions of sub~secti011 (2) of Section 51 of the Act have not been complied with when the refelence was made. It was also contended that the party no. 1 i.e. respondent no. 1 herein had never raised a dispute and has not given a notice of change under section 31 of the Act to the petitioner in Form ‘J". Further the Iequirement of sec1ion 39(1) of the Act has not been complied with and as such since the matter was never seized in conciliation, no report was sent to the Chief Conciliator u/s 43(2) of the Act. The willingness of the parties was never obtained as is. required u/ s 43(6) of the Act and the conciliation proceedings have not been resorted to, therefore, the mandatory pmvisions have not been complied. This‘was also taken as an objection that the dispute in respect of suspension of the persons included in the attached list with reference is not such a dispute which is not likely to be settled by other means. Taking these objections, it was prayed that since the objections go to the root of the matter and relate to the jurisdiction of the Industrial Court, it should be decided first taking them as the preliminary issues in the matter. (4) After receiving the said objection the matter was referred by the Industrial Court Judge, Raipur to the President, Industrial Court, Indore on 20.10.1994 for constituting a larger Bench to decide the same. On 31.5.1995 the Division Bench of the Industrial Court, Indore, after hearing the parties, decided the JP qucstions raised in the preliminary objection by the petiu'oner and fhe same was dismissed. (5) The Stats Government on 24.51995 further added the list of 807 employees in the original Hst of employees annexed as schedule to term No.3 of the reference. This was made a part of records of tribunal on 07.08. 1995. Thereafter, the State Government further added term no.4 to the reference made to the Indusm'al Court vide its order datcd 31.7.1995 which relates to the interim relief after which the respondentxUnion filed its statement of claim before the Industrial Court on 1 1.9. 1995. (6) Since the preliminary objection about the maintainability of the reference was dismissed, [a writ petition *be‘aring W.P.No.1231] 1995 was nled by the petitioner, before the single Judge of the Indore Bench of the High Court of Madhya Pradesh but this petition was also dismissed vide order dated 27lO9. 1996. Against the said dismissal, the petitioner preferred a Letters Patent Appeal No.156/ 1996 before the Division Bench. Ultimately, this matter went in the full Bench and by order dated 06.4. 1999 the full Bench disposed of the said L.P.As. and directed the Industn'al Court, Raipur to decide the reference on merits Within a period of 4 months as per law after hearing the parties. The parties were directed to appear before the Industrial Court on 10th of May 1999. In fact, the LPAs were disposed of by the Full Bench by a consent order by which the Industrial Court’s order \\... dated 31.5.1995 rejecting the preliminaiy objection and @ _5, upholding the maintainability of the reference and the writ comt order dated 27.9.1996, adirming the said older of the indUsu‘ial Court were upheld and the reference made by the State Government to the Industrial Court was found in onier. It was also observed that any observations made by the successive bench of the High Court touching the substance and the merit of the dispute between the parties shall have no bearing in disposal of the reference by the Industrial Court which shall proceed in the matter uninhuenced by any such order. (7] After the said order the matter was again taken up by the Industrial Court It appears that the petitioner, even after giving repeated opportunities by the Industiial Court, did not hie its written statement or the Statement of claims and ultimately the parties were called upon to lead their evidence. Respondent no. 1 examined only one Witness and closed its case. Though the wimess of respondent no. 1 was cross examined by the counsel for the petitioner but the petitioner did not produce any oral or documentary evidence in the case. The Industrial Court, after hearing the arguments passed the impugned award dated 16.10.1999 by which a direction was issued to the petitioner to reinstate the workers enlisted in the order of reference with 660/0 back Wages. It was also directed that the minimum wages, dearness allowance and other allowances fixed by the State. Government shall be payable to the employees hom the date of their reinstatement. It is against this order the petih'oner has hled this writ petition. (8) Shri‘ A.M. Mathur, learned senior counsel appealing for me petitioner submits that term no.3 of the reference was wxongly amended by the State Government after a very long period by adding a list of persons to the Schedule annexed to the reference; It is submitted that such an amendment was contraxy to Section 52—A of the Act 1960. It is fmther submitted that this is an ermr of law appaxent on the face of record as the State Government was having no authority to amend the, reference and in consequence the Industrial Court was having no jun'sdiction to adjudicate upon the matter which was added later on by the amendment made by the State Government on a subsequent date t He further submits that term no.3 of the reference relates to the termination of the workers whereas the list of the persons annexed to the reference shows that the workers ale suspended persons. In this manner learned counsel submits that the Industrial Court erred in law in considering the case of suspended persons whereas term no.3 of the reference relates to t the terminated persons only. The third argument is that the industrial Court failed to appreciate that the respondent Union is only a registered union and not a recognized union, therefore, it cannot maintain such claim. He further argues that neither in the statement of claim nor in the evidence it has been stated that the enlisted persons were members of the respondent Union, therefore, the Union _¥_ could not represent the enlisted persons in this ieference before the Industrial Court. He also argues that the daim set-forth by the respondent Union by way of statement of claims has not been established by examining the Witnesses in this regard, hence respondent no.1 failed to establish the factum of employment, identity of persons, date and/factum of their termination etc., etc., and the leaxned Judge of the Industrial Court committed an error of law by granting relief in favour of the respondent Union. In nut-shell, learned counsel for the petitioner has assailed the finding of the facts arrived at by the industrial Court on the ground of lack of the evidence led by union] respondent No. 1 and the same being based on sympathetic considerations only. Lastly it has also been submitted that the answer'to terms No.1 8r. 2 of the reference is also incorrect and is based on no evidence on record. It is a settled principle of law that without recording the finding in‘relation to economic capacity of the employer, no such orders could be passed. (9) Per contra, learned counsel for the respondent No. 1/Union submits that so far as the technical objections in relation to the maintainability of the reference are concerned, they cannot be reagitated at this stage as this matter stands finally concluded by the order dated 27. 11.2000 passed in the aforesaid L.P.As by the full Bench of the M.P.High Court which was in fact a consent order and it was consented to by the petitioner and held by the said Court‘that the matter has to be decided on merits holding the reference to be proper and in order and in accordance with law. He also submits that strict principles of Evidence Act are not applicable in the proceedings before the Industrial Tribunal and the tribunal has rightly come to the conclusion regarding illegal termination of the employees and has also rightly held that the employees should be reinstated with 66% back wages. (10) We have heard learned counsel for the parties at length and have also perused the records of the Industrial Court. (11) The hrst point raised by learned counsel for the petitioner relates to submission of the addih'onal list by the State Government for adding the names of employees in the schedule annexed to term No. 3 of the reference. As already stated above, learned counsel for the petitioner submits that there is no provision of amendment of the reference under the Act19\60 and if any amendment is to be done that can only be done within the scope of Section 52-A of the said Act. He takes us to the provisions of Section 52—A. This section deals with the powers of the State Government to include other undertakings in the reference. It postulates that where an industrial dispute concerning any undertaking in an industry or branch thereof has been or is to be referred under Section 51 or Section 52 and the State Government is of the opinion that the dispute is of such nature that any undertaking group or class of undertakings of i _\similar nature is likely to be interested in or ah‘ected by such \_ \ ?._ dispute, the State Government may at the time of making such reference or at any time thereafter include in that reference such undertakings, group or class of undertakings whether or not at the time of such inclusion any dispute exists or is apprehended in that undertakings, group or class of undertaking. Learned counsel submits that it is the only provision which empowers the smte Government to amend the reference and no other powers of amendment have been vested in it. Therefore, the action taken by Government by adding more number of workers in the schedule is without jutisdiction. Neither the Government was having any authority to do the same nor thelndustrial Court was having any jurisdiction to adjudicate upon the matters of persons whose names were later on added in the schedule annexed to term No. 3 of the reference. On other hand, learned counsel for the respondent] Union submits that in fact it is not an incident of amendment of the term of reference at all. The Government has not amended the term of reference and has only corrected the schedule of the reference by adding the names of some more persons. It is for this reason, no objection was taken by the petitioners at any stage of hearing of this matter either before the Tribunal or before the single bench or full benchof the High Court. Since the petitioner has lost before the Tribunal they are taking an opportunity to agitate this point saying it to be an amendment in the terms of the reference. ”/0... (12) We have s€6n the recoxds of the Tribunal and have found that the above addition made by State Government was through a letter dated 24.5. 1995 which was made as part of the records of the Tribunal on 27.8.1995. After perusal of the records, it appears that it was not opposed by the petitioner either by filing an objection before the Tribunal or by taking additional grounds before the writ Court and the appellate Court. A complete perusal of the impugned order also shows that even this ground was not taken at the time of final hearing of the case and ultimately, the impugned award was passed without making any comment on the said point raised by the petitioner for the first time before this Court by way of this writ petition. (13) Since this ground is taken for the nlst time in the writ petition, the validity of the impugned order passed by the tribunal cannot be tested in reference to this ground directly raised before this Court. It is a settled principle of law that under Article 226 of the Constitution, the High Court does not sit or act as an appellate authority over the actions of the sub—ordinate authority or tribunals. It has to confine itself to correcting any error of jurisdiction by the authorities and it cannot assume the suo motu jurisdiction of the appellate Court and attempt to correct every mistake assumed to have been made by the tribunal. Even the absence of provision of appeal against the order of tribunal does not enlarge the powers of interference under Article 226 and the High Court could not exercise the power of appellate authority. I Reference may be made to a decision of the Supreme Court \\ \ ‘//- reported in (1998) 8 Supreme Court Cases 237 (Appropriate Authority and another —Vs- Sudha Patil (Smt) and another). Even omemise also if we examine the matter, we &1d that there is no amendment 1'11 the terms of the Ieference. What is conected is the list alone and the term no.3 has been left as it is. In fact, the matter under reference vide term no.3 was to test the validity of the “mass termination” allegedly €,&'ected by the petitioners in this matter, in which the correction of the list annexed with the said term has got no bearing. We are not in agreement with the arguments advanced by learned counsel for the petitioner and we accordingly reject it. (14) The second argument advanced by learned counsel for the petitioner relates to the fact that the persons enlisted with term no.3 of the reference are shown to be suspended persons whereas the reference relates to the adjudication of termmated persons, therefore, the reference itself is illegal and lacks in mandatory mentions. This argument advanced by learned counsel cannot be sustained at this stage. If we examine the preliminary objection tiled by the petitioner before the Industrial Court then it would be clear that this objection was taken vide ground No.(i) in the said objections and the division bench of the Industrial Court over ruled the same by its order dated 31.3. 1995. Against this order, a writ petition was nled before the single bench and the Single bench also dismissed this writ petition against which the Letters \ Patent Appeals were filed which were nnally disposed of by a \ common order dated 06.04. 1999 passed by the Full Bench of the M.P.High Court and the orders passed in relation to this objectiOn and other objections also were coniirmed and upheld. The relevant portion of the order reads as under: 2. After arguing for a while LC for parties agreed for disposal qf these appeals by the following oonsent order: 1. The Industrial Court order dated 31.5. 1 995 upholding the maintainability of reference and the writ Court order dated 27. 09. 1 996 Wming that order is upheld. In other words the reference made by the Government to the Industrial Court is found in order and would not be subject to anyfurther objection by the appellants. In these facts and circumstances , it can safely be held that this point raised by the petitioner at the earliest stage has been decided by the Full Bench of the M.P. High Court vide the order referred to above, which was a consent order, and the Same stands concluded. The petitioner cannot reagitate these points before this Court. More over, the chart annexed to term no.3 of the reference goes to show the status of employees on a particular date. This mention in a column in the chart cannot be treated as an evidence of the present Status of the petitioners or their status on the date of satisfaction of the State Government to make the reference. (15) So far as the third submission in relation the authority to represent the employees by the present union] respondent no. 1 is concerned, this point was not raised by the petitioner by tiling any reply as we have already mentioned above, the petitioner has not tiled any reply or written statement or its own statement of _\ \ /3w claims befoxe the industn'al Court. This has only be€n argued by learned counsel for the petiu‘oner, to which the tribunal said that this point stands iinally concludcd by the Older passed by the full Bench as the full bench held all the technical objections to be ovelruled by passing a consent order to pass an award on merits. Before us it is submitted that since the plesent union is a mgistexed union and is not a Iepresentative union and it has not been brought on record that the employees are the members of ' this registered union, therefore, this union was not competent to represent their case. We have considered this argument advanced by learned counsel for the petitioner. Section 51 of the Act provides for reference of dispute to the Labour Court, Industrial Court or the Board and the Agency defined in the section is‘the Government. It has been provided that if on a report made by the Labour Officer or otherwise the Government is satisfied that an indusnial dispute exists and there also exists any of the situation described in clause (a) to (c) read with the two clauses of proviso, the Government is invested with the discretion to refer the dispute to the said Courts or the Board. Section 52 of the Act provides for a reference by the Unions and it has been provided that “representative Union” can refer an industrial dispute for adjudication, if the matter relates to Schedule—I either to the Board or the Industrial Court and if the matter relates to the matters other than Schedule—l, to the Labour Court. This right of the “representative Union” is subject to the condin'ons mentioned in 3 clauses of the proviso to sub-section (1). The ‘p word “representative union” has been defined in section 2(28) of \ \ \ ~/4_ the Act which means an Union for the time being recognized as a “representative union” under this Act. The Word “registered union” has not been detined in section 2 but simple word ‘union’ has been defined vide section 2(34) which means a Trade Union of Employees which 1's registered under the Indian Trade Unions Act 1926. Therefore, so far as the reference of a dispute to the respective Court or the Board is concerned, they are governed by the provisions of secu'on 51 and 52 of the Act. The basic dinerence between these two sections is that under section 51, the reference shall be made by. the Government. However, under section 52, the right of reference has been conferred on ‘representative union’. Certainly, the case in hand is not governed by section 52 of the Act and the same is governed by section 51 because the reference was not made by the respondent] Union, but was made by the State Government at the instance of the respondent-Union. The argument advanced is that this Union cannot represent the workers as it has not been stated anywhere that the workers were the members of this union. In the opinion of this Court, the same is a question of fact,,which would have been gone into by the Industrial Court if such an objection would have been raised before it by the petitioners by tiling a written statement or by any other means. Since no material is placed before us by the petitioners to show that the employees were not the members of the respondent Union, therefore, we are unable to express any opinion in this regard. The argument advanced by learned counsel for the petitioner is not supported with any material on ../5- record, themfors, we cannot accept this argumcnt as a ground to set aside the award passed by the tribunal. (16) Now coming to the next argument that in fact the respondent Union could not prove its c1a1'm set forth before the Industrial Court, nrst of all, we shall refer to the Statement of the claim made by the Union. The statement of claim flled by the respondent Union especially pertaining to reference no.3, states that all the workers enlisted in the schedule were employees of the petitioner. The standard standing orders are applicable to their establishment. It has been stated that these workers were not issued any charge sheet nor any enquiry was conducted and they were terminated from their jobs. Even the order of termination was not communicated to them and the workers‘were not paid any retrenchment compensation. It is also stated that the workers junior to the workers mentioned in the reference were retained and the new Workers have also been appointedk It is also stated that the workers are always willing to work from which they have been deprived of illegally. Pleading all these facts vide Para 8 to 20 of the’statement of claims, the respondent Union has prayed that the concerned workers may be reinstated in service alongwith all the benents/wages/ compensation. As we have already stated above, no written statement to the aforesaid claim set forth by the respondents has been'nled by the petitioner in this case. Even the petitioners have also not filed their own statement of claim before the industrial Court. Not only this, the unfortunate position is that no documentary or oral \ v/g, evidence was produced by the petitioners befom the tribunal and ulh'mately only