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

. . that no industrial dispute came into existence before this reference as the workmen have failed to establish serving of demand on the management prior to this reference. The effect of this finding is that the reference could not have been made for adjudication and the same is accordingly invalid and hence the question of deciding the issue as in the reference or other issue does not arise as the industrial dispute under reference did not come into existence in accordance with law before this reference. This award his made accordingly.Thereafter, the workmen on October 25, 1972, raised a dispute by serving demand notice on the Management. By his order dated May 2, 1973, the Lt. Governor, Delhi, again made a Reference to the Labour Court, under the Act for adjudication of the same matter relating to the termination of the services of the aforesaid workmen.6. The Management raised, inter alia, a preliminary objection that a second Reference within one year of the first award, dated September 27, 1972, was not competent in view of what is contained in Section 19 of the Act.7. By an order dated May 2, 1973, the Labour Court dismissed the preliminary objections. After recording the evidence produced by the parties, the Court held on merit, that the termination of the services of the three workmen was illegal and unjustified. The Court further found that Bidhi Chand-workman had become gainfully employed elsewhere as a driver with better emoluments and it was therefore sufficient, to award him compensation, without any relief of reinstatement, at the rate of 50% of his wages for three years from 1966 to 1969 to the date of his getting employment elsewhere. It further found that Ram Sarup Gupta had remained unemployed after his dismissal in 1966. It therefore directed his reinstatement with full back wages and continuity of service. As regards H. S. Rawat, the Court found that he could not have remained unemployed throughout but was doing some work or the other for his living, may be with occasional spells. The Court therefore held that Rawat was entitled to reinstatement and continuity of service with 50% back wages till the award came into operation and he got his reinstatement. This award was made by the Labour Court on May 1, 1975.8. The Management impugned this award by filing a writ petition under Article 226 of the Constitution in the High Court of Delhi. Only three contentions were canvassed by the Management at the preliminary hearing before the High Court : (i) That the determination, dated September 27, 1972, by the Labour Court was an award as defined in Section 2(b) of the Act, and in view of sub-section (3) of Section 19, it had to be in operation for a period of one year. It could be terminated only by a notice given under sub-sections (4) and (6) of Section 19. Since no such notice was given, the award continued to be in operation. The second award, dated May 1, 1975, could not be validity made during the period, the first award was in operation. (ii) The demand for reinstatement was not made by the workmen till 1972 and the Labour Court was not justified in awarding them the relief of instatement together with compensation for back wages from 1966 onwards. (ii) The onus to show that the workmen had not obtained alternative employment, after their dismissal, was on the workmen and this onus has not been discharged. On the other hand, the Labour Court wrongfully did not permit the Management to adduce additional evidence to show that the workmen had obtained alternative employment and, in consequence, were not entitled to back wages.9. Regarding (i), the High Court held that since the award dated September 27, 1972, was not one which imposed any continuing obligation on the parties, but had ended with is pronouncement, nothing in sub-sections (3) and (6) of Section 19 was applicable to it.10. As regards (ii), the High Court held that once the dismissal of the workmen was found illegal, it was a inevitable to award the compensation from the dates of dismissal till they found alternative employment or till the date of the award, as the case may be.11. In regard to (iii), the High Court said that the question of burden of proof as to who is to prove, whether the workmen did not get alternative employment for the period for which back wages have been awarded to them could arise only if no evidence was given by either party or if the evidence given by them was evenly balanced. Neither of these circumstances was present before the Labour Court, and there was no good reason to disturb the finding of fact as recorded by the Labour Court on this point.12. The High Court thus rejected all the three contentions, and, in the result, dismissed the writ petition in limine, with a speaking order. Hence this appeal.

Reasoning:
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.