Case: Cox &amp; Kings (Agents) Ltd Vs. Their Workmen And Ors

workmen and there was no agreement between the parties in regard thereto. Our conclusion, therefore, is that the bar of Section 19 of the Industrial Disputes Act does not operate with regard to the matters covered by items (1) and (3) of the present reference and the argument put forward by the appellant on this aspect of the case must be rejected."29. Although the facts of the case before us are different, yet the principle enunciated therein, viz., that the bar of Section 19 operates only with regard to a determination made on merits, is fully applicable. By any reckoning, the decision dated September 27, 1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it. This was an additional reason for holding that the recent reference was no barred by anything contained in sub-section (3) or other provision of Section 19.30. We have gone through the single Bench decision of the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd.s case (supra). That decision is to the effect that the finding recorded by the Labour Court that the matter referred to it for adjudication was not an industrial dispute as defined in the Act, it itself a determination of a question relating to an industrial dispute, and would fall within the definition of term award under the Act. In our opinion, this is not a correct statement of the Law on the point.31. The next submission of Mr. Pai, is, that since the demand for reinstatement was no duly made by the workmen before October 25, 1972, the Court below were not justified in awarding to the workmen, compensation for back wages from 1966 onwards.32. On the other hand, Mr. Ramamurthi maintains that such a claim was presumably agitated by the workmen in proceedings before the Conciliation Officer, in 1966. While conceding that technically, no formal notice for reinstatement was served by the workmen on the Management before October 25, 1972, counsel submits that the Management were aware of the workmens claim to reinstatement, since 1966, and in these circumstances, the Management should not be allowed to take shelter behind this technical flaw, and deny just compensation to them from the date of wrongful dismissal.33. We have carefully considered the contentions advanced on both sides. After taking into consideration all the circumstances of the case, we are opinion that the Labour Court was no justified in awarding compensation to the workmen for wages relating to the period prior to October 25, 1972, i.e., the date on which the demand notices for reinstatement were served on the Management. To this extent, we would accept the contention of the appellants.34. The third contention of the appellants is that the onus of proving that they had not obtained alternative employment elsewhere after the termination of their services, was on the workmen, and they had failed to discharge that onus.35. We find no merit in this contention.36. The question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce. In the instant case, both the parties led their evidence and closed their respective cases. Subsequently, at a late stage, the Management made an application for adducing additional evidence. The Labour Court declined that application. The High Court found - and we think rightly, no good reason to interfere with the discretion of the Labour Court. It may be remembered further, that this appeal arises out of a petition under Article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal evidence. The finding of the Labour Court to the effect, that after their dismissal, Ram Sarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find any intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those finding of fact.36. Lastly it was urged by Mr. Pai, that the employers had lost confidence in the employee Rawat and therefore, compensation, without reinstatement, would have been adequate relief. It is submitted that the business of the employers is that of Travel Agent and such a sensitive business can be successfully carried on only with the aid of employees whose fidelity and integrity is beyond doubt. It is stressed that the employees of the appellants have to handle daily lot of cash received from their clients in the discharge of their duties. It is pointed out that the charge against H. S. Rawat was one of misappropriation of such funds and this charge was established in the domestics enquiry. The Labour Court, proceeds the argument, did not displace that finding of the domestic tribunal, but ignored it on the ground that the charge was stale and had been condoned. In short, the argument is that the employers had lost confidence in this employee who would no longer be entrusted to perform sensitive jobs on behalf of the Management, without detriment to its business.38. We re unable to accept this contention.39. Firstly, this point was no argued before the High Court. Secondly, the observations of the Labour Court, read as a whole show that, in its opinion, the charge of misappropriation of funds had not been proved against H. S. Rawat. This is what the Labour Court said on the point :"I am therefore of opinion that the charge had been condoned and they could not be reviewed again and the act receiving the charge on account of his Union activities was an act of unfair labour practice on the part of the management and amounted to victimisation. Even the charges in the charge-sheet Ex. M/5 have not been established before me, that workman withdrew the funds from the company on false pretences for revenue stamps and misappropriated the same."40. Thus there is no factual basis for this belated contention, and we repel the same.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]21. There is no dispute that the order on the earlier Reference was made by the Labour Court on September 27, 1972, while the second Reference with the same terms of Reference to that Court was made by the Government on May 2, 1973, i.e., within one years of the earlier order. It is common ground that the period of one year for which an award normally remains in operation under sub-section (3) was not reduced or curtailed by the Government under Section 19 or under any other provision of the Act. It is further admitted between the parties that no notice was given by any party of its intention to terminate the Order, dated September 27,is maintained that a question, whether or not an industrial dispute exists, will itself be a question relating to an industrial dispute within the intendment of the second part of the definition.25. The contention appears to be attractive but also stand a closea conjoint reading of Clause (b) of Section 2 and sub-sections (1) and (4) of Section 10, it is clear that in order to be an award within the second part of the definition, a determination must be - (i) an adjudication of a question or point relating to an industrial dispute, which has been specified in the Order of Reference or is incidental thereto; and (ii) such adjudication must be one on merits.27. Now let us test the Labour Courts order, dated September 27, 1972 in the light of the above enunciation. That order did not satisfy any of the criteria indicated above. It did not determine the question or point specified in the Government Order of Reference. Nor was it an adjudication on merits of any industrial dispute or a question relatingonly question determined by the Order, dated September 27, 1972, was about the existence of a preliminary fact, viz., existence of an industrial which in the Labour Courts opinion was a since qua non for the validity of the Reference and the exercise of further jurisdiction by the Court. Rightly or wrongly, the Court found that this preliminary jurisdictional fact did not exist, because "no industrial dispute had come into existence in accordance with law", and, in consequence, the Reference was invalid and the Court was not competent to enter upon the Reference and determine the matter referred to it. With this finding, the Court refused to go into the merit of the question referred to it. There was no determination on merits of an industrial dispute or a question relating thereto. We are therefore of opinion that the Labour Courts determination dated September 27, 1972, did not possess the attributes essential to bring it within the definition of an award. The mere fact that this order was published by the Government under Section 17(1) of the Act did not confer that status on it.Although the facts of the case before us are different, yet the principle enunciated therein, viz., that the bar of Section 19 operates only with regard to a determination made on merits, is fully applicable. By any reckoning, the decision dated September 27, 1972 of the Labour Court by its very nature did not impose any continuing obligation on the parties bound by it. This was an additional reason for holding that the recent reference was no barred by anything contained in sub-section (3) or other provision of Section 19.30. We have gone through the single Bench decision of the Allahabad High Court in Workmen of Swadeshi Cotton Mills Co. Ltd.s case (supra). That decision is to the effect that the finding recorded by the Labour Court that the matter referred to it for adjudication was not an industrial dispute as defined in the Act, it itself a determination of a question relating to an industrial dispute, and would fall within the definition of term award under the Act. In our opinion, this is not a correct statement of the Law on the point.We have carefully considered the contentions advanced on both sides. After taking into consideration all the circumstances of the case, we are opinion that the Labour Court was no justified in awarding compensation to the workmen for wages relating to the period prior to October 25, 1972, i.e., the date on which the demand notices for reinstatement were served on the Management. To this extent, we would accept the contention of the appellants.We find no merit in this contention.36. The question of onus oft loses its importance when both the parties adduce whatever evidence they had to produce. In the instant case, both the parties led their evidence and closed their respective cases. Subsequently, at a late stage, the Management made an application for adducing additional evidence. The Labour Court declined that application. The High Court found - and we think rightly, no good reason to interfere with the discretion of the Labour Court. It may be remembered further, that this appeal arises out of a petition under Article 226 of the Constitution, and in the exercise of that special jurisdiction, the High Court does not reopen a finding of fact based on legal evidence. The finding of the Labour Court to the effect, that after their dismissal, Ram Sarup Gupta was unable to find any alternative employment elsewhere, while Rawat was able to find any intermittent employment elsewhere, were based on evidence produced by the parties. The High Court was therefore right in not interfering with those finding of fact.We re unable to accept this contention.39. Firstly, this point was no argued before the High Court. Secondly, the observations of the Labour Court, read as a whole show that, in its opinion, the charge of misappropriation of funds had not been proved against H. S.is what the Labour Court said on the pointam therefore of opinion that the charge had been condoned and they could not be reviewed again and the act receiving the charge on account of his Union activities was an act of unfair labour practice on the part of the management and amounted to victimisation. Even the charges in the charge-sheet Ex. M/5 have not been established before me, that workman withdrew the funds from the company on false pretences for revenue stamps and misappropriated the same.Thus there is no factual basis for this belated contention, and we repel the same.