Case: The Workmen and Ors Vs. Hindustan Lever Ltd

other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the Act. There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not. There is no such obligation cast statutorily on the Tribunal. If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation t o decide the status of the person whether he is a workman or not. Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement. The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon. If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute. The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. Therefore the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute. Undoubtedly it is true that there can be no estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration. The Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who see k its aid to relieve them against the express statutory provision. Approving the dicta in Maddison v. Alderson(1) this Court observed in K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., (2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel. Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the Act, the agreement between the Union and the employer cannot confer on the Tribunal any juris diction to give any relief to him under the Act. The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading. In this connection, it may be recalled that when a reference is made under Sec.10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer. Sub-rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, w ould go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. It is neither repudiated nor terminated. It is binding upon both the parties. Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it . That part of the order/award of the Tribunal is unsustainable and must be quashed and set aside.22

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

Explanation:
1[ds]It would be crystal clear that the employer wanted the reference to be rejected at the threshold on the preliminary objection that in view of the concluded binding agreement between the parties, the dispute referred to for adjudication being of an all-India nature, the union was precluded from raising the same at a regional level and the Tribunal had no jurisdiction to entertain the same. Apart from the extracted specific contention in paragraphs 5 and 6, the contention is elaborated by the employer and it was specifically contended that in the award dated Nov. 17, 1966 by Shri Roop Chandra, Addl. Industrial Tribunal, Delhi, it was held that a valid agreement was in existence between the parties and no dispute pertaining to the members of the Field Force can be raised anywhere except in the State of Maharashtra. It was further contended that the award o f Shri Roop Chandra was confirmed by the High Court of Delhi by summarily dismissing the Writ Petition No. 1163/67 filed by the union against the award and when the union approached the Supreme Court in Appeal No. 42/68, the same was rejected there by affirming the existence and binding character of the agreement. These assertions by the employer flow from the pleadings. To revert to the narration, Shri Hans Raj proceed on leave and then retired and when a new Presiding Officer was appointed, t he reference with one application filed by the union to summon certain documents came up before the Tribunal. By a laconic order, unsupported by any reasoning, the Tribunal observed that the salesmen are not workmen and so the documents need not be summoned. It was this order on the application which was challenged in the writ petition filed by the union. It is difficult to appreciate what permitted the Tribunal to hold that the salesmen are not workmen within the meaning of the expression in the Act and why it did not consider the specific contention that the employer was estopped from raising the contention as to the status of the salesmen in view of the binding agreement between the parties. But for the present purpose, it is sufficient to notice that the employer and the union both swore by the agreement and at any rate the employer never contended that there was no concluded agreement between the parties covering one of the points in the dispute namely, the status of the members of the Field Force including salesmen.Mr. Pai next turned to another round of litigation between the parties. It appears that effective from September 6, 1966, the employer reorganised its marketing organisation into two divisions, the Main Lines Division and the Speciality Lines Division. The Calcutta Branch of the employer was concerned only with marketing. The workmen at Calcutta were directly affected by the reorganisation. On a dispute raised b y the union, the Government of West Bengal referred the following dispute for adjudication to the Industrialadjudication of the dispute, some workmen filed applications under Sec. 33A of the Industrial Disputes Act before the Tribunal alleging that during the pendency of the adjudication their service conditions had been altered adversely and their salary for the month of October, 1966 had not been paid. The Tribunal granted the applications of the workmen and the employer approached the Supreme Court by special leave. The main reference was finally disposed of in favour of the employer upholding the reorganisation of marketing organisation. The union questioned the correctness of this award before the Supreme Court. Both the groups of appeals came up for hearing together and the decision of this Court is reported in Hindustan Lever Ltd. v. Ram Mohan Ray &Ors. This Court upheld the right of the employer to organise and reorganise its work in the manner it pleases. Accordingly the appeals filed by the union wereview was adopted in Aluminium Factory Workers Union v. Indian Aluminium Co Ltd.(1) In that case certain correspondence which passed before and after the awards between the parties was referred to. This correspondence showed that the appellant/union and the staff association of the company fully accepted the principle that Supervisors would no longer be regarded as workmen and that Supervisors had resigned from membership of the workmen unions. These averments in the correspondence regarding the status of the Supervision being not workmen was held binding between the parties and both the Industrial Tribunal and this Court declined to examine the contention about the status on merits If the union can be held bound to such an inferred agreement from correspondence, the employer conceding the status or to be precise conceding not to contest the status of salesmen would equally be binding on the employer. It would thus appear that the employer management was held bound not by any specific agreement but an agreement spelt-out of its conduct in Western India Match Co. case and assertions in correspondence in India Aluminium Co. case treating certain categories of the workmen as workmen or not as workmen or not as workmen respectively within the meaning of the expression in the Act then at a later stage the employer and the union respectively were estopped from contending to the contrary. The case before us is much stronger in that there is a concluded binding agreement between the parties neither repudiated nor terminated till today which provides that the employer on its part will not contest the status of the membership of the Field Force including the salesmen employed by the Company as workmen within the meaning of the expression in the Act. Therefore the Tribunal committed a serious error apparent on recorded in holding that there was no concluded agreement between the parties as emerging from Exs. W-2, W-3 and W-4.The Tribunal negatived the content ion of the union that the employer was estopped from challenging the status of the workmen also on the ground that there can be no estoppel against the statute We must confess that even Mr. Pai did not appear to be very enthusiastic to support the finding of the Tribunal that even if there is a binding agreement between the parties and therefore the employee is estopped from questioning the status of salesmen as being workmen, it cannot be availed of by the union because there can be no estoppel against a statute. We find it very difficult not only to understand but to appreciate the approach and the finding of the Tribunal in this behalf. There is no statutory provision that a status of a person invoking the jurisdiction of the Tribunal must be adjudicated upon notwithstanding that no contention to that effect is raised. No statutory provision was brought to our notice which would be rendered nugatory or ineffective if the Status of workman is not questioned. Nor i t can be said that the employer has contracted out of the benefits of a statute. Whether a particular person is a workman or not depends upon factual matrix. Workman is defined in Sec. 2(S) of the Act. The ingredients and the incidents of the definition when satisfied. the person satisfying the same would be a workman. Negatively, if someone fails to satisfy one or other ingredient or incident of the definition he may not be held to be workman within the meaning of the expression in the Act. There is no provision in the Act which obliges the Industrial Tribunal or other forums set up under the Act to decide even in the absence of a contention from the employer, a preliminary issue whether the person who has invoked its jurisdiction is a workman or not. There is no such obligation cast statutorily on the Tribunal. If the employer does not arise contain about the status of the workman approaching the Tribunal the Tribunal has no obligation t o decide the status of the person whether he is a workman or not. Conversely if the employer agrees not to question the status in future it would only imply that such a contention would not only be not raised but if raised it would not be pressed and if pressed should be negatived in view of the binding agreement. The resultant situation would be that the Tribunal must proceed on the assumption that no such contention is raised and required to be adjudicated upon. If the contention is not raised the Tribunal is under no obligation suo motu or on its own to raise and decide such a contention to cloth itself with jurisdiction to adjudicate upon the dispute. The Tribunal derives its jurisdiction by the order of reference and not on the determination of a jurisdictional fact which it must of necessity decide to acquire jurisdiction. Therefore the Tribunal was clearly in error in holding that the contention convassed on behalf of the union would permit it to raise estoppel against a statute. Undoubtedly it is true that there can be no estoppel against the law of the land. If a party is estopped by doing a thing which it is under a legal disability to perform or forbearing to do something which it is his duty to do the result would be an enlargement of the contractual or other rights allowed by law or their alteration. The Court enforces the performance of statutory duty and declines to interfere for the assistance of persons who see k its aid to relieve them against the express statutory provision. Approving the dicta in1) this Court observed in K.Ramadas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors., (2) that an excess of statutory power could not be validated by acquiescence in or by the operation of estoppel. Is that the situation here? The Tribunal observed that notwithstanding the fact that the employer has agreed to recognise the union as representative of the Field Force including the salesmen, agreement between the parties cannot override the statute and if therefore Shri A.K. Basu is not workman under the Act, the agreement between the Union and the employer cannot confer on the Tribunal any juris diction to give any relief to him under the Act. The Tribunal completely misdirected itself when it assumed and arrogated to itself the obligatory duty in the absence of an impermissible contention, to raise one and proceeded to adjudicate upon, notwithstanding the fact if the agreement is subsisting no such contention can be raised and if raised has to be ignored as an irrelevant pleading. In this connection, it may be recalled that when a reference is made under Sec.10 of the Act, Rule 10-B of the Industrial Disputes (Central) Rules, 1957 obliges the workman involved in the reference to file with the Tribunal a statement of demands relating only to the issues as are included in the order of reference and simultaneously serve a copy of the same to the employer. Sub-rule(2) enjoins the employer within two weeks of the receipt of the statement of claim to file its rejoinder and simultaneously serve a copy of the same on the workman. Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, w ould go to the root of the matter. But the Tribunal cannot travel beyond the pleadings and arrogate to itself the power to raise issues which the parties to the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the workmen, the Tribunal cannot suo motu raise the issue and proceed to adjudicate upon the same and throw out the reference on the sole ground that the concerned workman was not a workman within the meaning of the expression of the Act. And it is not obligatory upon the employer necessarily to raise the contention that the concerned workman was not a workman within the meaning of the expression under the Act. Therefore, the Tribunal was wholly in error in holding that if the contention of the union were to prevail, the well laid rule of no estoppel against a statute would be violated.Having examined all the dimensions of the matter, it is crystal clear and is indisputably established that the agreement relied upon by the union is a valid subsisting agreement. It is in force. It is neither repudiated nor terminated. It is binding upon both the parties. Once the agreement is held to be binding, the employer is estopped from contending that the workmen involved in the dispute who were salesmen were not workmen within the meaning of the expression under the Act. Therefore, the Tribunal was in error in undertaking to examine that contention and answer it .