1 WP4324.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4324 OF 2011 Force Motors Ltd. ... Petitioner v/s Mr.Bharat Jijaba Shinde & ors. ... Respondents Mr.S.K.Talsania, Sr. counsel with Vishal Talsania & Ms.Pallavi Dedhia i/by Sanjay Udeshi & Co. for the petitioner. Mr.Bhavesh Parmar i/by Ms.Sandhya A. Mailagir & Mr.Devmani Shukla for respondent Nos.1 and 2. Mr.Kiran Bapat i/by Avinash Fatangare for Resp. No.3. Ms.S.S.Bhende, A.G.P. for respondent No.4. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 15TH SEPTEMBER, 2011 P.C.: 1. Heard Mr.Talsania, the learned counsel for the petitioner. 2. Leave to delete respondent No.3. Amendment be carried out forthwith. 2 WP4324.11 3. Rule. Rule made returnable forthwith by consent of the parties. 4. Mr.Parmar waives service for respondent Nos.1 and 2 and Ms.Bhende, the learned A.G.P. waives service for respondent No.4. 5. This petition filed under Article 226 of the Constitution takes exception to the order of reference dated 15.3.2010 passed by respondent No.4 under Section 12(5) of the Industrial Disputes Act, 1947 (‘the Act’ for short), thereby referring for adjudication the demands raised by two individual workmen i.e. respondent Nos.1 and 2. The schedule to the reference reads as under :- vuqlwph ½ Hkjr fttkck f'kans o Jh- ukFkk txUukFk Fkksjkr ;k nksu dkexkjkauk oxGwu daiuhrhy brj dkexkjkauk enrhpk gkr] ufou xzqi bUlsaVhOg ;kstuk] uksVhl ;kstukaps ts ykHk fnys vkgsr rs ;k dkexkjkauk feGkosr- v-dz- Ldheps ukao dkykok/kh ns; jDde :- 01 enrhpk gkr 1 tqyS 2005 rs 30 lIVsacj 2006 3500 x 15 = 52]500/­ 02 uohu enrhpk gkr 1 vkWDVkscj 2006 rs 31 vkWDVkscj 2006 8000 x 1 = 8]000/­ 03 uksVhl ;kstuk 1 uksOgsacj 2006 rs 30 lIVsacj 2008 8000 x 23 = 1]84]000/­ 3 WP4324.11 Pursuant to the said impugned order, Reference (IT) No.4 of 2010 came to be registered before the Industrial Tribunal at Pune. The petitioner company filed an application at Exh.C-2 and raised the preliminary objection that the reference was not maintainable as the dispute referred for adjudication in the said reference was at the behest of individual workman and unless such a dispute was raised by the trade union registered under the Trade Unions Act, 1926, the reference could not have been raised. The workmen replied to the said application by filing their replies at Exhs.U-10 and U-11. They also submitted their notes of argument at Exh.U-15 and after hearing the parties concerned, the learned Member of the Industrial Tribunal by his order dated 24.2.2011 rejected the prayer raising preliminary issue before filing the written statement and directed the petitioner Company to file its written statement. The learned Member also observed that the Assistant Commissioner of Labour had closed the conciliation proceedings on 11.2.2010 and submitted his failure report under Section 10(1) and 12(5) of the Act to the Additional Commissioner of Labour, Pune. The said report was considered by the Additional Commissioner of Labour and the reference order was passed on 15.3.2010 by him. When the dispute was referred to the Tribunal, the only fact the Tribunal was left with is to answer either in the 4 WP4324.11 affirmative or in the negative. If the first party-company is aggrieved by the order of the Additional Commissioner of Labour, referring the dispute for adjudication of this Tribunal, the company is at liberty to approach the High Court so as to challenge the decision of the Government to refer the matter to the Industrial Tribunal. It is under these circumstances, this petition under Article 226 of the Constitution has been filed before us. 6. There is no dispute that respondent Nos.1 and 2 in their individual capacity addressed a letter to the Assistant Commissioner of Labour on 7.11.2009 and raised the grievance that their salary was not enhanced from the year 2001 onwards. They also pointed out that the benefits of group incentives and other statutory benefits were not paid to them though all other workmen were in receipt of the said benefits. In the said representation they pointed out that for the period from 1.7.2005 to 30.9.2008 each of them had lost about Rs.1,84,000/- and the said amount was due to them legitimately. This dispute was not sponsored or taken up by any trade union despite the fact that there is a recognized trade union and a registered trade union also representing some of the employees of the petitioner company. The conciliation proceedings were held and as noted earlier, the 5 WP4324.11 Assistant Commissioner of Labour submitted his failure report. As per Section 2(k) of the Act, “industrial dispute” means, any dispute or difference between the 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.” Section 2A which was added in the scheme of the Act with effect from 1.12.1965 provides for an individual workman’s dispute and it states as under, “(1) Where any employer discharges, dismisses, retrenches or otherwise terminates the service of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination, shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.” It is thus clear that the scheme of the Act provides for individual disputes to be referred for adjudication only in case of discharge, dismissal, retrenchment or otherwise termination of service of an individual workman. The grievance raised by respondent Nos.1 and 2 in their representation to the Assistant Commissioner of Labour was not regarding the termination of service by any mode i.e. 6 WP4324.11 discharge, dismissal or retrenchment either oral or in writing. 7. The Supreme Court in the case of Workmen v/s Hindustan Leaver Ltd., reported in (1984) 4 S.C.C. 395, held as under: “4. Section 10(1) confers power on the appropriate Government to refer an existing or apprehended industrial dispute, amongst others, to the Industrial Tribunal for adjudication. The dispute therefore, which can be referred for adjudication, of necessity, has to be an industrial dispute which would clothe the appropriate Government with power to make the reference, and the Industrial Tribunal to adjudicate it.” If the dispute raised, it does not amount to an industrial dispute as defined under the Act, obviously, the appropriate Government has no powers to make a reference of such a dispute for adjudication. Having regard to the schedule of the reference as reproduced herein above, undoubtedly, it was not an industrial dispute as defined under Section 2(k) or 2A of the Act and, therefore, it could not have been referred. The reference order impugned is thus ab initio void. 8. So far as the powers of the Industrial Tribunal to decide the legality of the reference made by the competent 7 WP4324.11 authority under the Act is concerned, the Supreme Court in the case of National Engineering Industries Ltd. v/s State of Rajasthan & ors., reported in 2001 1 SCC 371, held that the Industrial Tribunal is a creation of a statute and it gets jurisdiction on the basis of the reference. It cannot go into the question of validity of the reference. The Supreme Court further observed, “It will be thus seen that the High Court has jurisdiction to entertain a writ petition when there is an allegation that there is no industrial dispute and none apprehended which could be the subject-matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which could be examined by the High Court in its writ jurisdiction. It is the existence of the Industrial Tribunal (sic dispute) which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it. If there is no industrial dispute in existence or apprehended the appropriate Government lacks power to make any reference.” 9. Even otherwise we are informed that respondent Nos.1 and 2 have already filed Complaint (ULP) No.229 of 2008 and prayed for a declaration that the employer is guilty of engaging in unfair labour practices and for directions to grant them the same benefits which are otherwise being paid to other workmen under the settlements signed from time to time or the schemes brought into force by the employer 8 WP4324.11 unilaterally. Even if no such relief has been prayed in the pending complaints, the said respondents are not estopped from filing a fresh complaint on the basis of the continued cause of action in denying them the due monetory benefits. However, so far as this petition is concerned, it deserves to be allowed as the reference has been made without jurisdiction and no industrial dispute as defined either under Section 2(k) or Section 2A of the Act either existing or apprehended, was raised. 10. Hence, this petition succeeds and the same is hereby allowed. The impugned order of reference dated 15.3.2010 is quashed and set aside. Rule made absolute accordingly, but without any order as to costs. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 9 WP4324.11