Shri Mool Chand Kharaiti Ram ... vs Secretary (Labour), Govt. Of Nct ...
2001 Latest Caselaw 665 Del

JUDGMENT

Vikramajit Sen, J.

1. This petition represents the second salvo of litigation in respect of a dispute between the Management and the Workman of the Moolchand Kharati Ram Hospital, Delhi, Consequent upon an incident that occurred on 11th February, 1995. The Management maintains that the Workmen had participated in an illegal strike on that day, whilst the Workmen contend that they were 'locked-out'. The first round of litigation commenced with the filing of C.W..D 1009 of 1995 by the Management, in which it assailed the legality of the Terms of Reference viz. - "Whether the Workmen shown in Annexure A are entitled to wages for the lockout period with effect from 11th February, 1995, if so, what directions are necessary in this respect?" The Workmen had filed C.W.P. 2454/95 for restraining the Management from the prosecuting the disciplinary proceedings against some of the Workmen, on the ground of their participation in the alleged strike. My Learned Brother Hon'ble Dalveer Bhandari, J. allowed the Management's petition and dismissed the writ petition filed by the Workmen. He observed of follows in Shri Moolchand Kharati Ram Hospital and Ayurvedic Research Institute v. Labour Commissioner/Secretary (Labour), National Capital Territory, and others, 1996 (2) L.L.N. 226:

"32. In the instant case when this principal is made applicable the inevitable conclusion would be that the State Government while drafting the reference has not taken into consideration the vital material produced by the management on record. Following vital material was not considered by the Labour Commissioner while issuing the reference in question:

(i) Appeal, dated 11 February 1995, issued by the Jagat Ram, President of workers union;

(ii) reply, dated 16 February 1995, sent by the management to the Assistant Labour Commissioner pursuant to his latter, dated 15 February 1995;

(iii) letter, dated 25 February 1995, sent by the management in reply to the letter, dated 22 February, 1995, received from the Conciliation Officer.

33. I am of the considered view that the real dispute has not been referred, because vital material produced by the management has not been taken into consideration and consequently the order of reference has to be quashed. It will be open to the Delhi Administration to make another order of reference in the light of material before it."

2. The Workmen unsuccessfully appealed before the Division Bench (see Shri Moolchand Kharati Ram Hospital Karamchari Union v. Labour Commissioner and other, 1997 1 AD (Delhi) 134) which followed the decision of the Full Bench in M/s. India Tourism Development Corporation, New Delhi v. Delhi Administration, Delhi and others, 1982 Lab. I.C. 1309, and extracted the following passage from this judgment:

"It is settled law that the jurisdiction of the Labour Court/Industrial Tribunal in industrial dispute is limited to the points specifically referred for its adjudication and the matters incidental thereto and it is not permissible to go beyond the terms of the reference. An industrial Adjudicature constituted under the Act is not vested with any inherent power of jurisdiction. It exercise such jurisdiction and power only upon and under order of reference except for ancillary matters. Making of order of reference is undoubtedly an administrative function but even that is amenable to judicial review in the proceedings under Article 226 under certain facts and circumstances an order of reference is open to judicial review if it is shown that the appropriate Government has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration. The whole correspondence between the management and the Labour Commissioner the Union of the workmen and the Labour Commissioner and the notices displayed by the management (the substance of which had been reproduced above) were before the Secretary (Labour), Delhi Administration when it passed the order of reference dated April 27, 1981. We are of the view that the existence of lock out itself being the real dispute between the management and its workmen, the term of reference proceeds on the assumption that there was lock out with effect from January 1, 1981."

3. Not content with this rejection, the Workmen even approached the Hon'ble Supreme Court, but the view of the Single Judge as well as the Division Bench of this Court was upheld. The Appeal titled as Moolchand Kharati Ram Hospital K. Union v. Labour Commissioner and Company, 2001 (1) L.L.N. 920 was disposed of on 19.9.2000 in these words:

"4. In these appeals, the contention put forth before us is that the order made by the Government making a reference to the Tribunal, is administration is character and, therefore, the High Court should not have interfered with the same. Even if we proceed on the basis that the nature of the order, making a reference is administrative in character, it is certainly open to the High Court to examine whether relevant consideration in making the reference had been taken not of or not. In the view of the High Court, relevant consideration have not been taken not of by the Government and that finding cannot be seriously disputed.

5. In the circumstances, we think the view of the High Court is justified. However, that would not solve the problem of the parties. The proper course to be adopted is to direct the first respondent to take appropriate steps to make a reference to the concerned Tribunal after considering all the relevant material on record in the case. Let such steps be taken within three months from today. The appeals stand disposed of accordingly."

4. Keeping these events is perspective, the Secretary (Labour) framed the following Terms of Reference, contained in his letter dated 17.11.2000. He directed the filing of the Statement of Claim along with relevant documents and List of Witnesses within 15 days before the Industrial Tribunal No.II, Karkardooma Courts, Shahdara, Delhi:

"Whether the workmen had resorted to strike w.e.f. 11.2.95 or the management had resorted to Lock-out and if so, to what relief are workmen entitled and what directions are necessary in this respect?"

5. This Reference has again been challenged by the Management by way of the present writ petition. Mr. S.N. Bhandari, Learned Senior Counsel appearing for the Petitioner has contended that even now the entire dispute between the parties has not been referred for adjudication by the Industrial Tribunal. He has extensively read out the judgment of the Learned Single Judge to sustain his argument that it is imperative that the question of the suspensive of Smt. Tilakamma Nair, the Vice President of the Union, which was the genesis of the dispute, should have also been simultaneously referred for adjudication. He has also argued that the Reference implies that a Lock-out declared on 11.2.95, which is palpably factually incorrect from a perusal of the documents field with the petition. He has cited Eagle Fashions, Delhi v. Secretary (Labour) Government of National Capital Territory of Delhi, New Delhi and others, 1998 (1) L.L.N. 269, in which a Division Bench of this Court had opined that the Terms of Reference should clearly spell out the real dispute between the parties. However, these observations were made in the context of a Reference the terms of which presumed the Workmen's employment and its termination, and confirmed the adjudication only to its illegality. Mr. Bhandari also predicated his challenge to the legality of the impugned Reference on the decision in Gordon Woodroffe, Ltd., Leather Division, Madras v. (1) Government of Tamil Nadu (By Secretary, Labour and Employment Department) (2) Workmen (by Secretary, Gordon Wodroffe Workers and Staff Union), Madras, 1996 (1) L.L.N. 865. The contention of the Petitioner Company was that it had not resorted to either a lock-out or a lay-off. but rather to a suspension of operations owing to its business being in the doldrums. This precedent is to little relevance in the circumstances of the present case, in the view favored by me that is ,that the impugned Reference adequately encompassed the disputes between the parties. Mr. Bhandari also relied on Secretary, Indian Tea Association v. Ajit Kumar Barat and others, ; and to Nedungadi Bank Ltd. v. K.P. Madhavankutty and others, and to Municipal Employees' Union v. Secretary (Labour), Government of N.C.T. of Delhi and another, 2001 III A.D. (DELHI) 581.

6. Mrs. Shyamla Pappu, Learned Senior Counsel for the Respondent submitted that the entire dispute had in fact been referred for industrial adjudication. She contended that if it is found that the Workmen had resorted to a strike, since no prior notice had been given, it would be illegal, and they then may not be entitled to any monetary relief. Mrs. Pappu also highlighted that the adjudication of the disputes had not commenced even though over six years had elapsed and the Workmen had been reduced to penury. However, in my view, this delay cannot be attributed to the Management since it had succeeded in its challenge to earlier Reference and it was the Workmen who had filed appeals which proved to be futile Management and Labour are strange bedfellows and so far as their interests and thinking are concerned, the twain shall seldom meet. The present case exemplifies this reality. If there is yet another protracted litigation to be fought, the Workmen may not have the financial strength to sustain it. The Management, it is contended, had declared a Lockout in retaliation to the alleged strike. If legal proceeding remain pending its liability to pay wages would remain suspended. In such disputes, therefore, it is essential that a holistic rather than a semantic approach is adopted whilst considering the appropriateness of the Terms of Reference. There must be an effort to save and sustain them. Only when it is not possible to construe it is present a referral of the entire dispute between the parties, should the power of judicial review be exercised to strike it down. The previous Reference was found to be so by all three tiers of the Court.

7. It is now not debatable that it is impermissible for the Court or any party to travel beyond the parameters established in the Terms of Reference but this should not impede and obstruct the adoption of the positive approach of saving the Reference. Otherwise, either party can exhaust precious time in raising technical objections, or a grievance that it did not comprehend the Reference to encompass the extent of adjudication intended to be carried out or actually so done in terms of the Award. In the Municipal Employees Union case (supra) I had meant little else when I said that " in my opinion the Terms of Reference should invariably encompass the entire dispute between the workman and the Management. It is often argued on behalf of the workman as well as on behalf of the Management, in Writ Petitions assailing an Award, that the terms of Reference were wide enough, or not so, to cover the aspect of the issue which the particular party wishes to canvass before the High Court in its extraordinary jurisdiction under Articles 226 and 227 of the Constitution. In all such cases it is first left to the subjective understanding of the Court as to the ambit and sweep of the Terms of Reference. It would, therefore, be in the interest of justice if the Terms of Reference are spelt out with care, exactitude and with such detail as would obviate any controversy as to the scope of the Reference. It is also in the interest of justice that all the disputes raised between the parties should be referred for adjudication at one instance and not in a truncated and piecemeal manner so that there can be a composite and single adjudication of all disputes between the parties." In the Municipal Employees case (supra) the Workman had suggested in writing, at the initial stage of the litigation, that the issue of his appointment as a Garden Chaudhary be also adjudicated, but this was ignored. Whether he was entitled to the wages of a Garden Chaudhary would obviously not encompass his claim to his alleged appointment to this post and even more significantly to his entitlement for future wages against this post. For these reasons, this decision is of no succour to the Petitioner. While on the point of the framing of issues, I had sought a clarification as to whether the representatives of the adversaries are heard by the Administration/Competent Authority at the stage when the Terms of Reference are being cost. Learned Counsel stated that this had not been done, nor was it the practice to do so. The position is similar to the framing of issues in a civil suit, which exercise is essentially that of the Court but is carried out with the active participation of the Advocate of the parties. It ensures that all the disputes are focused for trial in accordance with law. The practice prevailing in industrial adjudication is that the Court frames additional issues after it commences proceedings on the Reference. Since it is impermissible for it to enlarge the scope of the Reference forwarded to it, all that it can do is to frame those issues which in its opinion flow directly from the Reference and are ancillary to it. These issues should only elucidate the Terms of Reference. However, to argue that the Industrial Tribunal/Labour Court has no such power would invalidate the plethora of case where this exercise has been carried out. Learned Counsel for the parties were unable to disclose any reason that would preclude the Competent Authority to cast the Terms of Reference in the presence of the parties, in a manner similar to the general practice in a Civil Court. This practice is accordingly recommended. As it is, the Authority is bound to consider all the material relevant for appreciating the real dispute between the parties, it hears their representative in this process.

8. Keeping these prefactorial observations contained in the foregoing paragraph in perspective, I shall consider the impugned Order in its totality. It commences with a recital of the annals of the previous litigation between the parties. Thereafter the Terms of Reference clearly encompass the question of whether the Workmen had resorted to a strike with effect from 11.2.95. That this was the principal dispute between the parties is amply clear from a reading of paragraph 8 of the judgment of the Learned Single Judge in Shri Moolchand Kharati Ram Hospital and Ayurvedic Research Institute case (supra):

"8. On 11 February 1995 one member of the supervisory staff Mrs. Tilakamma Nair was suspended from duty on account of gross negligence in her duties. The case of the management is that all the employees of the hospital struck work from 1 P.M. on 11 February 1995 without notice, leaving all the patients, including those under critical care, totally unattended and the employees had gone on strike."

9. In paragraph 10 of the same judgment it is mentioned "that a strike was resorted to against the suspension of Ms. Nair who herself is not a workman." Since it is contended by the Workmen that the Management had resorted to a Lock-out, the Terms of Reference thereafter mention this question also.

10. I find no substance in the argument of Mr. S.N. Bhandari, Learned Senior Counsel for the Petitioner that a reading of the Terms of Reference would disclose that there was an assumption that the Lock-out also took place on 11.2.1995. On a plain reading it is mentioned that the strike occurred on 11.2.1995. It would, therefore, be open to the Management to disclose and prove before the Presiding Officer Industrial Tribunal that the Lock-out was as a consequence of the strike and occurred much after 11.2.95. As mentioned above if the strike is held to be illegal it would become a foregone conclusion as conceded by Smt. Shyamla Pappu, Learned Senior Counsel for the Respondent, that the Workmen would not be entitled to much relief. In this view, the Terms of Reference as they are presently cast undoubtedly take within their sweep the entire dispute between the parties. Even if this is not so, it would be quite in order for the Industrial Tribunal to frame additional issues, in conformity with the extant practice. So long as these issues are incidental to and flow out of the Terms of Reference it would not tantamount to enlarging the scope of the Reference or proceeding beyond it. The central and focal issue is the alleged strike and not its cause or genesis. If the Management considers it necessary that the question of the suspension of Ms. Nair should also be gone into, this may at best be an incidental issue, and, therefore, could quite easily and appropriately be brought into the adjudication.

11. The Hon'ble Supreme Court has repeatedly admonished and frowned upon efforts of parties to seek legal recourse at interlocutory stages. These inevitably cause delay; such attempts should be deprecated. There should be a meaningful and conscious effort to expeditiously resolve industrial disputes so that industrial peace is fostered. In the present case over six years have passed since the alleged strike. Industrial adjudication should not be impeded any further. A semantic and hypertechnical reading of the Terms of Reference must be eschewed. Language has its inherent variabilities which can be largely eradicated by adopting a positive and holistic approach. I am unable to accept the argument of Learned Senior Counsel for the petitioner that the entire disputes between the parties has not been referred for adjudication.

12. As the petition is being disposed off at the admission stage I refrain from passing any order as to costs, even though counsel for the Respondents had put in appearance.

13. In these circumstances the petition is without merit and is dismissed.