Case: Hochtief Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orissa &amp; Others

of this test that the implied power of the Tribunal to add parties must be held to be limited.13. This question has been considered by the Madras High Court in two reported decisions. In P. G. Brookes v. Industrial Tribunal, Madras, AIR 1954 Mad 369 the Division Bench of the said High Court has held that S. 18(b) by necessary implication gives power to the Tribunal to add parties. It can add necessary or proper party. He need not be the employer or the employee. In that particular case, the party added was the Receiver and it was found that unless the Receiver was added as a party to the reference proceedings, the adjudication itself would become ineffective. In the words used by the judgment, the party added was not a rank outsider or a disinterested spectator, but was a Receiver who was vitally concerned with the proceedings before the Tribunal and whose presence was necessary to make the ultimate award effective, valid and enforceable.14. In Radhakrishna Mills Ltd., Peelamedu v. Special Industrial Tribunal Madras, AIR 1954 Mad 686 , a single Judge of the Madras High Court followed the earlier decision, though in this case, a party that was summoned by the Tribunal has been added to the reference by the State Government under S. 10(5) of the Act.15. In Anil Kumar Upadhaya v. P. K. Sarkar, AIR 1961 Cal 60 a learned single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustees of the Provident Fund in question who had not been impleaded originally to the reference were summoned by the Tribunal and the Court held that in the absence of the Trustees, the award would have become nugatory. It would be noticed that in all these decisions, the implied power of the Tribunal to summon additional parties in the reference proceedings is confined only to cases where such addition appeared to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference and to bring in matters which are not the subject-matter of the reference and which are not incidental to the dispute which has been referred.16. That takes us to the question as to whether the appellant is justified in contending that M/s. Hindustan Steel Ltd. is a necessary party to the present proceeding before the Industrial Tribunal, and should, therefore, be added as such. Mr. Chatterji has raised two contentions in support of his plea that M/s. Hindustan Steel Ltd. is a necessary party. The first contention is that if it is ultimately found that the respondents claim for bonus for the relevant year is well founded, as a result of the contract between the appellant and M/s. Hindustan Steel Ltd. the liability to pay the said bonus would rest with the said concern and not with the appellant. The appellant, according to Mr. Chatterji, is a firm constituted only for a single venture for undertaking the execution of the work of construction and foundation and civil engineering works at Rourkela; it has been engaged by the said concern of M/s. Hindustan Steel Ltd. as its agent and in that behalf an agreement has been executed between the parties. Mr. Chatterji referred us to some of the relevant clauses of this agreement in support of his plea that the liability for bonus, if established by the respondents against the appellant, would be not the appellants, but of M/s. Hindustan Steel Ltd. We do not propose to examine the merits of this contention, because we are satisfied that even if Mr. Chatterjis contention is well founded by reference to the relevant clauses of the agreement between the parties, that cannot make M/s. Hindustan Steel Ltd., a necessary party within the meaning of S. 18 (3) (b). This contention raises an entirely different dispute between the appellant and its alleged principal and such a dispute would be wholly foreign to the industrial dispute which has been referred to the Tribunal for its adjudication.17. The next contention raised by Mr. Chatterji is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant. In other words, this contention is that though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of Orissa, it is necessary that the principal, viz., M/s. Hindustan Steel Ltd. ought to be added as a party. In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Unions case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not be possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under S. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s. Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so,we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under S. 18(3)(b).

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

Explanation:
1[ds]It will be noticed that clause(a) refers to all parties to the industrial dispute, whereas clause (b) refers to all other parties summoned to appear. The word "other" seems to suggest that the parties summoned to appear to whom clause (b) refers are not identical with the parties to the "industrial dispute specified by clause (a). Section 2(k) of the Act defines an industrial dispute, inter alia, as meaning any dispute or difference between employers and workmen; so that parties to the industrial dispute under clause (a) would mean persons between whom the dispute has arisen as prescribed by S. 2(k) and so, clause (b) contemplates persons other than those who are actually and directly involved in the dispute which is the subject-matter of reference under section 10.Thus, S. 18 (b) seems to contemplate that persons other than parties to the industrial dispute may be summoned before theis significant that so far as the reference to the Tribunal is concerned, S. 10 (1) (c) empowered the appropriate Government to refer the dispute to the Tribunal, and unlike clause (b) this clause did not take within its sweep any matter appearing to be connected with or relevant to the dispute; so that in regard to the power to refer an industrial dispute to the Tribunal for its adjudication, the appropriate Government could make a reference of the dispute itself and was not expressly clothed with the power to refer any matter appearing to be connected with, or relevant to, such a dispute. The result of these relevant provisions clearly seems to be that if the Industrial Tribunal, while dealing with an industrial dispute, came to the conclusion that persons other than those mentioned as parties to the industrial dispute were necessary for a valid determination of the said dispute, it had the power to summon them; and if such persons were summoned to appear in the proceedings, the award that the Industrial Tribunal may ultimately pronounce would be binding on them. Since in cases where persons were added as parties to an industrial dispute were likely to raise the question as to whether the joinder of the parties was justified or not, S. 18 (b) required that the Tribunal should record its opinion as to whether these persons had been summoned without proper cause. Thus, we are inclined to take the view that Mr. Chatterji is right in contending that S. 18 (b) as it originally stood, postulates that the Tribunal had an implied power to summon parties, other than parties to the industrial dispute, to appear in the proceedings before it. That naturally raises the question about the extent of this power.This question has been considered by the Madras High Court in two reported decisions. In P. G. Brookes v. Industrial Tribunal, Madras, AIR 1954 Mad 369   the Division Bench of the said High Court has held that S. 18(b) by necessary implication gives power to the Tribunal to add parties. It can add necessary or proper party. He need not be the employer or the employee. In that particular case, the party added was the Receiver and it was found that unless the Receiver was added as a party to the reference proceedings, the adjudication itself would become ineffective. In the words used by the judgment, the party added was not a rank outsider or a disinterested spectator, but was a Receiver who was vitally concerned with the proceedings before the Tribunal and whose presence was necessary to make the ultimate award effective, valid and enforceable.14. In Radhakrishna Mills Ltd., Peelamedu v. Special Industrial Tribunal Madras, AIR 1954 Mad 686  , a single Judge of the Madras High Court followed the earlier decision, though in this case, a party that was summoned by the Tribunal has been added to the reference by the State Government under S. 10(5) of the Act.15. In Anil Kumar Upadhaya v. P. K. Sarkar, AIR 1961 Cal 60   a learned single Judge of the Calcutta High Court has accepted the same view. In that case, the Trustees of the Provident Fund in question who had not been impleaded originally to the reference were summoned by the Tribunal and the Court held that in the absence of the Trustees, the award would have become nugatory. It would be noticed that in all these decisions, the implied power of the Tribunal to summon additional parties in the reference proceedings is confined only to cases where such addition appeared to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference and to bring in matters which are not theof the reference and which are not incidental to the dispute which has beendealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Unions case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not be possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under S. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s. Hindustan Steel Ltd. and cannot be regarded as incidental in any sense, and so,we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under S. 18(3)(b).