Delhi Transport Corporation ... vs Raj Pal S/O Parsadi Lal
2006 Latest Caselaw 1591 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the award dated 1st October, 2004 passed by the Labour Court-X, Karkardooma Courts whereby the Labour Court directed the reinstatement of the respondent/workman at the post of driver if he was medically fit. If he was not medically fit for the post of driver, directions were given that he be given other lighter duty.

2. Briefly, the facts are that the workman/respondent raised an industrial dispute that was referred for adjudication to the Labour Court vide an order dated 11.12.1992 with the following terms of reference:

Whether the services of Sh. Raj Pal have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect

3. The facts leading to this reference are that the respondent/workman was working as a driver with the petitioner. He met with an accident on 3.12.1990 and was hospitalized. After accident, when he regained his health, he reported for duty on 7.3.1991 with medical certificate recommending that he should be given light duty. The petitioner sent him for medical check up by its own Medical Board at IP Depot on 9.3.1991 and after receiving the report of Medical Board that he was unfit for duty of a driver, he was given light duty by the petitioner. The workman was supposed to undergo medical examination at regular intervals. His next medical examination took place on 9.5.1991 and next on 29.7.1991. The Medical Board of the petitioner still found him not fit to resume duty as a driver and he was given a light duty. He was posted at the store of Gazipur Depot. He was again supposed to undergo medical examination on 19.2.1992. According to the petitioner, it asked the workman/respondent to appear before the Medical Board on 19.2.1992 but the respondent neither received the letter nor reported to the Medical Board and instead filed a statement of claim before conciliation officer and raised an industrial dispute alleging that he was removed from service.

4. The claim of the respondent filed before the Labour Court is that he had been working regularly at the store of Gazipur Depot after his recovery from accident till 18.2.1992 and on 19.2.1992, when he went to resume duty, he was not allowed to resume duty by Depot Manager, Gazipur Depot. So, the workman approached his union on 19.2.1992 and requested the union to file a complaint regarding not allowing him to be on duty. It is under these circumstances that the above dispute was referred to the Labour Court.

5. During pendency of the proceedings, the petitioner initiated an inquiry against the respondent workman in the year 1998 for unauthorized absence. It is alleged that chargesheet dated 5.8.1998 was sent to the respondent as he was not reporting for duty. No reply was submitted to this charge sheet and enquiry proceedings were initiated with effect from 10.6.1999. An intimation was sent to the respondent about charges and enquiry on 6.10.1998, 21.12.1998, 18.1.1999, 15.2.1999, 8.3.1999 and 16.10.99 but the respondent neither appeared nor sent any information, so the enquiry proceeded ex parte. A show cause notice was sent to the respondent about penalty imposition on 15.9.1999 to which reminders were also sent, but to no effect. Ultimately, the services of the respondent were terminated vide order dated 19.11.1999.

6. No dispute was raised by the respondent in respect of this enquiry or termination of services. However, during the evidence before the Tribunal, the management submitted that it had not terminated the services of the respondent in 1992 but had terminated the services of the respondent in 1999 vide letter Ex.MW1/A dated 19.11.1999. The Tribunal, while adjudicating the reference, considered the evidence, and observed, it seems that either because of personal vendetta of some of the DTC officer against the claimant or due to lapse on their part, he was not sent for medical examination after 18.2.1992, nor given any light duty but the Tribunal stopped there and thereafter the Tribunal did not give any finding or answer to reference and started dealing with the termination of the respondent vide letter dated 19.11.1999. The Tribunal observed that this termination of the workman by the management vide letter dated 19.11.1999 was illegal and unjustifiable because the management had not sought approval of the Tribunal under Section 33 of the Industrial Disputes Act, since an industrial dispute was pending before the Tribunal. The Tribunal observed that law does not permit to penalize the workman without approval of the Industrial Tribunal when a reference is already pending. The Tribunal, therefore, held that the termination of the respondent vide letter dated 19.11.1999 was illegal and answered the reference against the management.

5. It is obvious from the perusal of the award that the Tribunal grossly stepped out of its jurisdiction. The reference before the Tribunal was in respect of termination of the respondent in the year 1992 on 19.2.1992. The reference was made on 11.12.1992. No reference was made to the Tribunal in respect of termination vide letter dated 19.11.1999, but the Tribunal gave a verdict in respect of termination of the respondent on 19.11.1999. Such a verdict could not have been given by the Tribunal.

6. In (2006) II LLJ 246 State Bank of Bikanair and Jaipur v. O.P. Sharma, the Supreme Court held:

The Industrial Court, it is well settled, derives its jurisdiction from the reference. See Mukand Ltd. v. Mukand Staff and Officers' Association . The reference made to the CGIT specifically refers to only one question, i.e. whether any illegality was committed by the management in giving appointment to one Vijay Kumar in place of the respondent in violation of Section 25-H of I.D. Act, 1947 Non maintenance of any register in terms of Rule 77 of the I.D. Rules was thus not in issue. Before the Industrial Court, the parties adduced evidence. An attempt was made by the respondent herein to show that one Vijay Singh was appointed, although the name of one Vijay Kumar appeared in the reference. An attempt was also made by the respondent to show that Vijay Kumar and Vijay Singh are one and the same person. In fact, one Voucher was produced which was allegedly issued in the name of one Vijay Sharma. The said contentions of the respondent were denied and disputed by the appellate herein.

The specific issue which was, therefore, referred for determination by the Labour Court, related to the dispute as regards violation of Section 25-H of the Act. If the said provisions had not been found to be violated, the question of setting aside the order of termination by the Labour Court did not and could not arise. The learned Single Judge proceeded on the premise that the High Court, in exercise of its writ jurisdiction, cannot sit in appeal over the award of the Labour Court. The Learned single Judge was right, but then, only because the jurisdiction of the High Court, while exercising of its power of judicial review was limited, it would not mean that even a jurisdictional error could not have been corrected. The provisions of Article 226 and 227 of the Constitution of India would be attracted if the inferior Tribunal has, inter alia, committed a jurisdictional error. What would be the ground for judicial review, in regard to the orders passed by the inferior Tribunal is no longer a res integra.

In the instant case, the award of the Labour Court suffers from an illegality, which appears on the face of the record. The jurisdiction of the Labour Court emanated from the order of the reference. It could not have passed an order going beyond the terms of the reference. While passing the award, if the Labour Court exceeds its jurisdiction, the award must be held to be suffering from a jurisdictional error. It was capable of being corrected by the High Court in exercise of its power of judicial review. The High Court, therefore, clearly fell in error in refusing to exercise its jurisdiction. The award and the judgment of the High Court, therefore, cannot be sustained. Consequently, the appeal allowed and the judgment of the High Court is set aside. The award is set aside to the extent of order of reinstatement with back wages. The writ petition filed by the appellant in the High Court is thus, allowed.

7. In the instant case, the specific dispute which was referred for determination by the Labour Court related to the termination of workman on 19.2.1992. There was no dispute referred to the Labour Court in respect of the termination of the workman vide letter dated 19.11.1999. The Tribunal derives its jurisdiction from the order of reference. It could not have passed an order going beyond the terms of reference holding that the termination of the respondent vide letter dated 19.11.1999, was illegal. The Tribunal exceeded its jurisdiction and the award suffers from jurisdictional error. I consider that the award is liable to be set aside.

8. I, therefore, set aside the award. However, the case is remanded back to the Tribunal to decide if there was illegal termination of the workman on 19.2.1992 and if so, the consequences thereof. Parties are directed to appear before the Tribunal on 4th October, 2006.