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

An industrial dispute in regard to the payment of bonus arose between the appellant Hochtief Gammon and the respondents, its workmen, represented by the Rourkela Workers Union, Rourkela. This dispute was referred for adjudication to the Industrial Tribunal, Orissa by the Government of Orissa on the 14th November, 1960. After the reference was received by the Tribunal, it passed an order on the 17th November, 1960 that notice of the reference should be issued to the parties concerned. Purporting to give effect to this order, the office of the Tribunal issued notices not only to the appellant and the respondents, but also to the Deputy General Manager of M/s. Hindustan Steel Ltd. This was so done apparently because a copy of the notification of the Government of Orissa containing the order of reference had been served on the said Dy. General Manager. After the notice issued by the Tribunal was received by the Dy. General Manager of the Hindustan Steel Ltd., he appeared before the Tribunal and urged that the Hindustan Steel Ltd. was not concerned or interested in the dispute and should not be added as a party to the reference.2. Meanwhile, the appellant made an application to the Tribunal on the 21st March, 1961 and contended that the interests of M/s. Hindustan Steel Ltd. and the appellant were common in the proceeding pending before the Tribunal, and so, M/s. Hindustan Steel Ltd. should be joined as a party. In this application, the appellant alleged that M/s. Hindustan Steel Ltd. was a necessary party, because the material documents which may have to be proved in the proceedings were with the said concern and, in fact, the enquiry in question would not be complete without the said concern being joined as a party. The Tribunal then considered the question of joining M/s. Hindustan Steel Ltd. as a party and held that it would decide the matter later. Meanwhile, the tribunal directed that M/s. Hindustan Steel Ltd. which had appeared in response to the notice issued to it should remain present during the hearing of the reference on the merits.3. This order did not satisfy the appellant, because it wanted a specific direction from the Tribunal to add M/s. Hindustan Steel Ltd. as a party to the reference. That is why the appellant moved the Orissa High Court under Art. 226 of the Constitution and prayed that the order passed by the Tribunal refusing to deal with the matter should be set aside and M/s. Hindustan Steel Ltd. should be joined as a party to the reference before it. This writ petition, however, failed, because the High Court took the view that it was premature. The High Court observed that the Industrial Tribunal had not yet passed a final order under S. 18(3) (b) of the Act, and so, without expressing any opinion on the merits of the controversy between the parties, the High Court treated the application as incompetent because it was premature.

Reasoning:
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).