The Bank Of India Thr. Zonal ... vs Bank Of India Workers ...
2021 Latest Caselaw 12273 Bom

J-LPA-411-08                                                                        1/21


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.

                     LETTERS PATENT APPEAL NO.411 OF 2008
                                       IN
                          WRIT PETITION NO. 247 of 2005


The Bank of India
Through its Zonal Manager,
Zonal Office, Kingsway, Sadar,
Nagpur                                                    ... Appellant

-vs-

1. Bank of India Workers Organization,
   A Union duly registered under the
   provisions of the Trade Unions Act, 1926,
   bearing Registration No.6053 having its
   Office at 542, Congress Nagar, Nagpur,
   Through its General Secretary
   Shirish Anandrao Damle

2. The Honourable Presiding Officer,
   Central Government Industrial Tribunal
   at Nagpur                                              ... Respondents

Shri A. T. Purohit, Advocate for appellant.
Shri Rohan R. Deo, Advocate for respondent No.1.

CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

Arguments were heard on : August 12, 2021 Judgment is pronounced on : September 01, 2021

Judgment : (Per : A. S. Chandurkar, J.)

This Letters Patent Appeal takes exception to the judgment of learned

Single Judge in Writ Petition No.247/2005 dated 18/10/2008. By the said

judgment the award passed by the Central Government Industrial Tribunal, Nagpur

(hereinafter referred to as the Tribunal) on 05/02/2002 in favour of the appellant

has been set aside and the proceedings have been remanded for re-consideration to

the said Tribunal.

J-LPA-411-08 2/21

2. The facts relevant for adjudication of the present appeal are that it is

the case of the respondent No.1-Union that one Shri K. D. Kanholkar was working

as Driver-cum-Sepoy with the appellant-Bank at its regional office from 22/09/1990.

The said regional office at Kamptee was abolished on 31/05/1993. Thereafter he

was not transferred to any other place and instead his services came to be

terminated on 31/05/1993 without any notice. According to him he was in

employment with the Bank as Driver and hence he sought reinstatement along with

back-wages. The Central Government under provisions of Section 10(2A) of the

Industrial Disputes Act, 1947 (hereinafter referred to as Act of 1947) referred the

dispute to the Tribunal at Nagpur. The said employee through the registered Trade

Union filed the statement of claim and the same was opposed by the Bank by filing

its written statement. The parties filed their affidavits and after examination of the

concerned witnesses, the Tribunal by its award dated 05/02/2002 recorded a

finding that there was no appointment order issued by the Bank to Shri K. D.

Kanholkar. In absence of any evidence in that regard it was held that he was not in

employment with the Bank. No termination order was issued to him on 31/05/1993

and hence in absence of any evidence as to his engagement as Driver-cum-Sepoy,

no relief could be granted to him. The reference was accordingly answered.

The Union challenged the aforesaid award in Writ Petition

No.247/2005. The learned Single Judge found that it was not permissible for the

Tribunal to go into the question as to whether the relationship of employer-

employee existed between the Bank and Shri K. D. Kanholkar. Since it was found

that the documentary material on record had not been duly considered by the

Tribunal, the award passed by it was set aside. The proceedings were remanded

J-LPA-411-08 3/21

for re-consideration of the entire material on record and to decide the reference

afresh. It is this order that is the subject matter of challenge in the present appeal.

3. Shri A. T. Purohit, learned counsel for the Bank submitted that the

learned Single Judge committed an error in holding that it was not permissible for

the Tribunal to go into the question as to existence of relationship of employer-

employee between the parties. The terms of reference indicated that the Tribunal

had to go into the question as to whether the action of the Management of the

Bank in terminating the services of Shri K. D. Kanholkar was justified or not. The

aspect as to relationship of employer-employee between the parties was incidental

to the dispute that was referred for adjudication. It could not be said that the

Tribunal by adjudicating the aspect of relationship between the parties had

travelled beyond the terms of the reference. It was then submitted that heavy

burden was on the employee to prove that he was infact engaged with the Bank as

Driver-cum-Sepoy. Inviting attention to the averments in paragraph 9 of the reply

filed by the Bank before the Tribunal it was submitted that such relationship had

been specifically denied by the Bank and that was more the reason for the Tribunal

to go into said aspect. In absence of there being any evidence whatsoever to

indicate engagement of Shri K. D. Kanholkar as Driver-cum-Sepoy there was no

reason whatsoever to remand the proceedings to decide the reference afresh. The

order passed by the Tribunal in the facts of the case was legal and correct and the

same did not warrant any interference. In support of his submission that it was

permissible for the Tribunal to decide incidental issues while answering the

reference, the learned counsel placed reliance on the following decisions :

 J-LPA-411-08                                                                               4/21


     (a)       Gulf Oil Corporation Ltd. Mumbai vs. Union of India and ors. 2008(2)
               Mh.L.J. 625

 (b)           Madho Ram vs. P. K. Jain 1997 II LLJ 1062 Del.

 (c)           The Employers in relation to Punjab National Bank vs. Ghulam Dastagir
               AIR 1978 SC 481.

 (d)           Mukund Staff and Officers Association vs Mukund Limited 2008 (2)
               Mh.L.J. 416

 (e)           State of Madras vs. C. P. Sarathy and anr. AIR 1953 SC 53

 (f)           State of Maharashtra vs. Dnyaneshwar Rakmaji Aher and anr. 1998(2)
               Mh.L.J. 135.

It was thus submitted that taking an overall view of the matter and in

the light of the legal position as settled by the decisions referred above, the order

passed by the learned Single Judge was liable to be set aside. He thus prayed for

allowing the Letters Patent Appeal.

4. Per contra Shri Rohan R. Deo, learned counsel for the Union supported

the judgment of the learned Single Judge. According to him though it was open for

the Tribunal to go into incidental matters while answering the reference as made, it

was not permissible for the Tribunal to travel beyond the terms of reference so as

to negate the reference proceedings itself. This aspect was rightly noticed by the

learned Single Judge while setting aside the order of the Tribunal. Referring to

the pleadings and the affidavits on record it was submitted that there was sufficient

documentary material to substantiate the claim made by the Union. That material

however was not considered by the Tribunal. This aspect was rightly noticed by

the learned Single Judge and hence the order of remand was necessitated. Prima

facie, that material on record clearly indicated the engagement of Shri K. D.

J-LPA-411-08 5/21

Kanholkar as Driver-cum-Sepoy by the Bank and the fact that his engagement was

put to an end in a manner contrary to law. He also referred to the notice to

produce various documents given by the Union to the Bank and reply given to that

notice before the Tribunal. Placing reliance on the decisions in Pottery Mazdoor

Panchayat vs. Perfect Pottery Co. Ltd. and anr. (1979) 3 SCC 762 and Hochtief Gammon

Vs. Industrial Tribunal, Bhubaneshwar (1964) II LLJ 460 it was submitted that in the

light of the reasons assigned by the learned Single Judge there was no case made

out to interfere in the appeal. On the contrary that order was liable to be

maintained and the reference proceedings ought to be decided expeditiously.

5. We have heard the learned counsel for the parties at length and with

their assistance we have gone through the documentary material placed on record.

By the impugned judgment the learned Single Judge was pleased to remand the

proceedings to the Tribunal for re-consideration principally on two grounds

namely, that the Tribunal had travelled beyond the terms of the reference by going

into the question as whether Shri K. D. Kanholkar was in employment of the Bank

so as to indicate existence of relationship of employer and employee between

them. This according to the learned Single Judge was impermissible for the

Tribunal to do. The other ground for remand is that the Tribunal failed to take into

consideration various documents that were on record thus vitiating its order.

6. Under Section 10 (1) of the Act of 1947 it is open for the appropriate

Government to make an order referring a dispute or any matter appearing to be

connected with or relevant to the dispute when it is of the opinion that any

J-LPA-411-08 6/21

industrial dispute exists. Section 10(4) which is relevant for the present purpose

reads thus :

Section 10(4) : Where in an order referring an industrial dispute to (a Labour Court, Tribunal or National Tribunal) under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, (the Labour Court or the Tribunal or the National Tribunal, as the case may be) shall confine its adjudication to those points and matters incidental thereto.

On a reading of Section 10(4) it is clear that the Tribunal is conferred

with the jurisdiction to adjudicate the points of dispute that have been referred to it

by the appropriate Government and the Tribunal has to confine its adjudication to "

those points and matters incidental thereto". According to the learned counsel for

the Bank the dispute as referred to the Tribunal was whether the action of the

Management of the Bank in terminating the services of Shri K. D. Kanholkar with

effect from 31/05/1993 was justified. It was his contention that the aspect as to

whether Shri K. D. Kanholkar was infact in employment of the Bank was an issue

incidental to the dispute as referred under Section 10(1)(d) of the Act of 1947.

7. For examining the aforesaid contention it would be necessary to refer

to the law in that regard. In The Delhi Cloth and General Mills Co. Ltd. vs. The

Workmen and others AIR 1967 SC 469 while considering the meaning of the

expression " matters incidental thereto " it was observed in paragraphs 8 and 9

as under :

(8) .... Under S.10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring

J-LPA-411-08 7/21

" the dispute or any matter appearing to be connected with, or relevant to the dispute, ...... to a Tribunal for adjudication."

"Under S. 10(4) where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this Section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."

(9) From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary :

" happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated:"

"Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore cannot cut at the root of the main thing to which it is an adjunct. ..."

From the aforesaid it becomes clear that while the dispute referred is

the fundamental thing, something incidental thereto would be adjunct to it. Thus

J-LPA-411-08 8/21

a thing that is incidental cannot cut at the root of the main thing to which it is an

adjunct. In other words, by seeking to decide an incidental matter the entire basis

of the reference proceedings cannot be removed.

8. Having considered the meaning of expression "matters incidental

thereto" the Hon'ble Supreme Court in the context of the facts before it observed in

paragraph 18 of that judgment that the order of reference as made was based on

the report of the Conciliation Officer and it was open to the Management to show

that the dispute which had been referred was not an industrial dispute at all so as

to attract jurisdiction under the Act of 1947. It was further observed that the

parties could not be allowed to go a stage further and contend that foundation of

the dispute mentioned in the order of reference was non-existent and that the true

dispute was something else. It was not competent for the Tribunal to entertain

such a question under Section 10(4) of the Act of 1947. Reference was also made

to the decision in Syndicate Bank vs. Its Workmen 1966-2 Lab LJ 194 and in

paragraph 16 it was observed that the said decision indicated that it was open to

the parties to show that the dispute referred was not an industrial dispute at all

and it was certainly open to them to bring out before the Tribunal the ramifications

of the dispute. The parties however could not be allowed to challenge the very

basis of the issue set forth in the order of reference. The observations in

paragraphs 8 and 9 which have been reproduced herein above would thus have to

be understood in the context of the observations made in the subsequent

paragraphs of the decision in Delhi Cloth and General Mills (supra).

J-LPA-411-08 9/21

9. The Constitution Bench of the Honourable Supreme Court in C. P.

Sarathy (supra) has held that in making a reference under Section 10(1) of the Act

of 1947 the Government undertakes an administrative act and the Court cannot

therefore canvass the order of reference closely to see if there was any material

before the Government to support its conclusion as if it was a judicial or quasi-

judicial determination. It was however open to a party seeking to impugn the

resulting award to show that what was referred by the Government was not an

industrial dispute within the meaning of Act of 1947 and therefore the Tribunal

had no jurisdiction to make the award. It was noticed that there was no procedure

prescribed under the Act of 1947 or in the Rules framed for the Government to

ascertain the particulars of the dispute from the parties before referring them to a

Tribunal under Section 10(1) of the Act of 1947.

The aforesaid decision clearly lays down that it would be open for a

party challenging the award to show that what was referred by the appropriate

Government was not an industrial dispute within the meaning of of the Act of

1947 and therefore the Tribunal had no jurisdiction to make the award.

10. In this context it is necessary to refer to the judgment rendered by the

Bench of three learned Judges in Management of Express Newspapers (Private)

Ltd. Madras vs. The Workers and ors. AIR 1963 SC 569 . The observations made in

paragraphs 11 and 12 are relevant and the same are as under :

"11. There is also no doubt that the proceedings before the Industrial Tribunal are in the nature of quasi-judicial proceedings and in respect of them a writ of certiorari can

J-LPA-411-08 10/21

issue in a proper case. If the Industrial Tribunal proceeds to assume jurisdiction over a non-industrial dispute, that can be successfully challenged before the High Court by a petition for an appropriate writ, and the power of the High Court to issue an appropriate writ in that behalf cannot be questioned.

12. It is also true that even if the dispute is tried by the Industrial Tribunal, at the very commencement the Industrial Tribunal will have to examine as a preliminary issue the question as to whether the dispute referred to it is an industrial dispute or not, and the decision of this question would inevitably depend upon the view which the Industrial Tribunal may take as to whether the action taken by the appellant is a closure or a lockout. The finding which the Industrial Tribunal may record on this preliminary issue will decide whether it has jurisdiction to deal with the merits of the dispute or not. If the finding is that the action of the appellant amounts to a closure, there would be an end to the proceedings before the Tribunal so far as the main dispute is concerned. If on the other hand, the finding is that the action of the appellant amounts to a lockout which has been disguised as a closure, then the Tribunal will be entitled to deal with the reference. The finding which the Tribunal may make on this preliminary issue is a finding on a jurisdictional fact and it is only when the jurisdictional fact is found against the appellant that the Industrial Tribunal would have jurisdiction to deal with the merits of the dispute. This position is also not in dispute."

The aforesaid observations are a clear pointer to the aspect that in a

given case it is open for the Tribunal while entertaining the reference to frame a

J-LPA-411-08 11/21

preliminary issue to decide whether it has jurisdiction to deal with the merits of the

dispute or not. The further observations in paragraph 19 of the decision are also

material in the present context and the same are as under :

"19. .... The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be lockout. In this connection it may be recalled that in several cases where industrial disputes are referred for industrial adjudication in respect of certain persons named as workmen, the employers raise the contention that the specified persons are not their workmen and it has never been suggested that merely because the said persons are described as workmen in the reference, the employer is precluded from disputing their status or that the Tribunal has no jurisdiction to try such an incidental dispute. Therefore, we do not think that Mr Sastri is right in contending that issue No.2 has been so worded as to exclude the jurisdiction of the Tribunal to deal with the question as to whether the appellant's impugned action amounts to a closure or not.

11. The power of the Tribunal to frame preliminary issues while

entertaining the reference has been recognised in Workmen of M/s. Hindustan

Lever Ltd. and Ors. Vs. Management of M/s. Hindustan Lever Ltd. AIR 1984 SC

516. In paragraph 25 it has been observed as under :

"25. ......... In this connection, it may be recalled that when a reference is made under Section 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

J-LPA-411-08 12/21

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, would 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......" (emphasis supplied by us)

In National Council for Cement & Building Materials Vs. State of Haryana

and Ors. (1996) 3 SCC 206 the aspect that an incidental matter could go to the root

of the jurisdiction of the Tribunal has been noticed. In paragraphs 9 and 10 it has

been been observed as under :

"9. The reference of a dispute to the Industrial Tribunal is made under Section 10 of the Act. Sub-section (4) of Section 10 provides as under:-

"(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government

J-LPA-411-08 13/21

has specified the points of dispute for adjudication, "the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto."

"10. This sub-section indicates that the extent of jurisdiction of the adjudicatory Tribunals is confined to the points specified in the order of reference or matters incidental thereto. Matters which are incidental to the reference may, sometimes, assume significant proportions and may relate to questions which go to the root of the jurisdiction of the Tribunal as, for example, question relating to the nature of the activity of the Employer as to whether it constitutes an industry or not, as has been done in the instant case. It is on the determination of this question that the jurisdiction of the Tribunal to adjudicate upon the reference rests." (emphasis supplied by us)

12. In Madho Ram (supra) that was relied upon before the learned Single

Judge and has been pressed into service in this appeal by the learned counsel for

the Bank, the question considered was whether the Tribunal while adjudicating the

dispute under Section 10(4) of the Act of 1947 and deciding matters "incidental

thereto" could go into questions that went to the root of the matter such as

existence of relationship of master and servant. The Division Bench of the Delhi

High Court was considering in appeal the judgment of learned Single Judge who

had refused to interfere with the award passed by the Industrial Tribunal. The

Tribunal had framed a point as to whether the relationship of employer and

employee existed between the parties while considering the reference as to

J-LPA-411-08 14/21

whether the services of Madho Ram had been terminated illegally and/or

unjustifiably. After referring various decisions of the Honouable Supreme Court

including the decisions in C. P. Sarathy, Delhi Cloth and General Mills Co. Ltd.,

Hindustan Lever Ltd and Pottery Mazdoor Panchayat (supra) it was held that a

preliminary issue going to the root of the matter could be decided by the Tribunal

but the Tribunal ought to decide such question along with other issues on merits so

that there was not delay in the matter. The order passed by the learned Single

Judge was not interfered with and it was observed that the decisions relied upon by

the workman did not hold that the existence of the relationship of employer and

workman could not be gone into by the Tribunal even if there were pleadings to

that effect.

It is seen that the Division Bench of the Delhi High Court has held that

as an incidental matter the question of relationship of employer and employee

between the parties could be gone into as a preliminary issue but the same was

required to be adjudicated alongwith all other issues on merits.

13. In Gulf Oil Corporation Ltd. (supra) which decision was relied upon by

the learned counsel for the appellant the order of reference made by the Central

Government was under challenge at the instance of the employer. The question

referred was whether the demand of the Union for reinstatement of the services of

an employee as well as his regularisation was legal, proper and justified. In that

context it was observed by the Division Bench in paragraph 6 of the said decision

that various questions on fact in relation to employer and employee relationship

could be raised by the employer before the Tribunal which could be decided by the

J-LPA-411-08 15/21

Tribunal in accordance with law. It was held that a question that was ancillary or

would arise for proper and complete adjudication of the referred question would

have to be dealt with by the Tribunal. The Management would have to discharge

its onus while the workman would have to discharge the onus placed upon him to

show that he was a workman of the Corporation. It may be noted that the Division

Bench referred to various decisions of the Honourable Supreme Court including

that in C. P. Sarathy (supra).

In Mukund Staff and Officers Association (supra) the Tribunal was

considering the reference as to whether the workmen whose names were

mentioned in the schedule were liable to be reinstated with back-wages and

continuity in service. While dealing with the reference, the Tribunal framed the

issue as to whether the party No.2 proved that the persons mentioned in the order

of reference were workmen within the meaning of Section 2(s) of the Act of 1947.

This order was challenged by the Union on the ground that by framing such issue

the Tribunal travelled beyond the order of reference. It was held that while the

Union was seeking reinstatement of its members, the Company had denied their

claim in absence of any relationship of employer and employee. The burden

therefore was upon the members of the Union to prove that they were workmen

under Section 2(s) of the Act of 1947. While maintaining the order passed by the

Tribunal framing the issue as to relationship between the parties as a preliminary

issue it was directed that same ought to be decided along with all other issues

together.

14. In Pottery Mazdoor Panchayat (supra) that was relied upon by the

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learned counsel for the Union, the question referred to the Industrial Tribunal was

" Whether the employers in relation to the Poly Pather Clay Mines of Perfect

Pottery Co. Ltd., Jabalpur, were justified in closing down the said mine and

retrenching the following 81 workers with effect from July 1, 1967. If not, to what

relief are the workmen entitled ?" The Tribunals while answering the reference

went into the question as to whether the business infact was closed down by the

Management. In that context it was observed that the Tribunals were not called

upon to adjudicate upon the question whether in fact there was a closure of

business or whether under the pretence of closing the business the workers were

locked out by the Management. The point of dispute was the propriety and

justification of the Management's decision to close down the business. Since the

limited dispute raised was whether the closure was effected for a proper and

justifiable reason, the Tribunal could not have gone into the factual aspect of

closure. In paragraph 12 of the said decision it was observed that it was not

necessary to rely exclusively on the terms of the references to come to the aforesaid

conclusion as the history of the dispute and the documents on record indicated that

the dispute between the parties related not to the question as to whether the

business in fact was closed by the Management but whether there was any

justification or propriety on the part of the Management in deciding to close down

the business.

In Hochtief Gammon (supra) the Hon'ble Supreme Court was

considering the scope of the provisions of Section 18(3)(b) of the Act of 1947 as

regards addition of parties to the proceedings. In that context it was observed that

adjudicating the dispute referred or any matter incidental thereto, the Tribunal

J-LPA-411-08 17/21

could order joinder of parties having recourse to Section 18(3)(b) of the Act of

1947.

These decisions therefore are not of much assistance while dealing with

the aspects arising in the present case.

15. The learned Single Judge in paragraph 12 of the impugned judgment

has by relying upon the decisions in Pottery Mazdoor Panchayat, Sitaram Vishnu

Shirodkar vs. The Administrator of Goa and others, 1984 Mh.L.J. 566 and India Tourism

Development Corporation, New Delhi vs. Delhi Administration, 1982 Lab I C 1309 held

that a question or issue which cuts the very roots of reference proceedings and

proposes to demonstrate the absence of facts supporting it has been treated as

outside the purview of the Industrial Tribunal to which the reference is made.

While it is true that the Industrial Tribunal cannot travel beyond the pleadings of

the parties and adjudicate an aspect that is beyond the terms of reference, it has

been held by the Constitution Bench in C. P. Sarathy, Management of Express

Newspapers (Private) Limited Madras and Workers of M/s Hindustan Lever Limited and

others (supra) that if the pleadings of the parties to the reference give rise to a

preliminary issue as to whether the dispute referred is an industrial dispute or not,

the Industrial Tribunal would be justified in framing such a preliminary issue based

on the pleadings of the parties and deciding the same. Thus, framing a preliminary

issue based on pleadings of the parties being permissible, it cannot be said that

doing so would amount to travelling beyond the terms of the reference or removing

its basis. Holding otherwise would result in taking away the right of a party

impugning the award to show that what was referred by the Government was not

J-LPA-411-08 18/21

an industrial dispute within the meaning of the Act of 1947 as held in paragraph 16

of the decision of the Constitution Bench in C. P. Sarathy (supra).

16. It thus appears from the aforesaid decisions that while contesting the

reference it is open to a party to raise pleadings that what was referred for

adjudication was not an industrial dispute at all. Moreover, a party seeking to

impugn the award can contend that what was referred by the Government was not

an industrial dispute and hence the Tribunal had no jurisdiction to make the award.

If the rival pleadings give rise to an issue going to the root of the jurisdiction of the

Tribunal a preliminary issue in that regard can be framed. The only requirement

was that such preliminary issue ought to tried along with all other issues together.

Framing of such preliminary issue even if the same went to the root of the matter

would not amount to going behind the order of reference as held in C.P.Sarathy

and Management of Express Newspapers (Private) Ltd . (supra). It is one thing to

say that the Tribunal framed and decide a preliminary issue based on pleadings of

the parties which could go to the root of the matter and it is another thing to say

that the Tribunal cannot go beyond the order of reference so as to remove the basis

of the reference itself. In other words, while the entire basis of the reference

cannot be removed by the Tribunal it can adjudicate upon jurisdictional points on

which the parties are at issue as reflected in their pleadings.

17. Perusal of the statement of claim submitted by the Union indicates that

in paragraph 3 it has been pleaded that Shri K. D. Kanholkar was a member of the

Union and on his termination the Union decided to espouse the cause of the

J-LPA-411-08 19/21

workman thus giving rise to an industrial dispute. In the reply filed by the Bank it

was denied that Shri K. D. Kanholkar was ever in service of the Bank and that there

was no relationship of master and servant between the Bank and Shri K. D.

Kanholkar. Hence there was no question of any industrial dispute arising in that

regard.

The aforesaid pleadings thus indicate that the parties were at dispute

with regard to the engagement of Shri K. D. Kanholkar as a workman of the Bank.

These pleadings did give rise to a preliminary issue as to whether Shri K. D.

Kanholkar was in service of the Bank thereby seeking adjudication of the aspect of

existence of the relationship of employer and employee. It is found in the light of

these pleadings that a preliminary issue as to the existence of relationship of

employer and employee between the parties does arise and the Tribunal was

required to go into the same.

18. It is however found that while answering the reference, the Tribunal

failed to consider the entire material on record as found by the learned Single

Judge. It is undisputed that the Union had given notice to produce twelve

documents to the Bank. In the reply to that application it was clearly stated that

the documents demanded were not either relevant or that some of them were not

available. The effect of refusal to produce the documents in the light of the reply

as given was not considered by the Tribunal. Similarly the contents of Motor

Insurance Claim Form pertaining to the car owned by the Bank bearing No. MZV

6673 have also not been considered. Same is the position with regard to the log

book that was placed on record. The learned Single Judge in paragraphs 14 and 15

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of the impugned judgment has noticed that all the documentary material that was

on record of the Tribunal was not taken into consideration by it. Even the effect of

non-production of some of the documents had not been considered. It is in that

backdrop that the proceedings were remanded for re-consideration. We find on

perusal of the record of the case that said observations have been rightly made and

the Tribunal has not gone into the entire documentary material on record.

Similarly the effect of non-production of some of the documents has also not been

considered. The order of remand to the Tribunal for re-consideration was the only

course open to be followed and the same has been done rightly so.

19. Thus while maintaining the order to the extent remand of the

proceedings has been directed, we hold that in the light of the pleadings of the

parties it would be open for the Tribunal to frame a point amongst others, as

regards existence of relationship of employer and employee between the parties.

However, as held in B.P. Maheshwari Versus Delhi Administration & Others AIR 1984

SC 153 and National Council for Cement and Building Materials (supra) all issues as

framed ought to be decided together.

19. As a sequel to the forgoing discussion, the following order is passed:-

(a) The direction of remand of the proceedings to the Central Government Industrial Tribunal Nagpur for fresh adjudication as issued in Writ Petition No.247 of 2005 by learned Single Judge is maintained.

(b) The Tribunal shall in the light of pleadings of the parties frame appropriate points for determination. Even if any preliminary point is

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framed, it shall be decided alongwith other points as framed in the light of observations made hereinabove.

(c) The reference shall be decided on its own merits after considering the entire material on record, uninfluenced by any observations made in this order. The reference proceedings shall be decided expeditiously and preferably within a period of six months from the first date of appearance of parties before it which shall be 15/09/2021.

(d) By modifying the judgment of the learned Single Judge in Writ Petition No.247 of 2005, the letters patent appeal is partly allowed in aforesaid terms with no order as to costs.

                                    JUDGE                             JUDGE




Asmita