Sh. Mahipal Singh vs Presiding Officer, Industrial ...
2010 Latest Caselaw 2513 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) 3802/1998

%                                           Date of decision: 11th May, 2010

SH. MAHIPAL SINGH                                       ..... Petitioner
                            Through: Mr. I.C. Kumar, Advocate

                        Versus
PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL-III & ORS.                          ..... Respondents
                  Through: Ms. Sushma Singh, Advocate

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                     Yes.

2.       To be referred to the reporter or not?              Yes.

3.       Whether the judgment should be reported
         in the Digest?                                      Yes.

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman by this petition impugns the order dated 17 th

January, 1998 of the Industrial Tribunal in a proceeding commencing with

the following reference made by the Delhi Administration:

"Whether the termination of services of Sh. Mahipal Singh is illegal and / or unjustified, if so, to what relief is he entitled and what directions are necessary in this respect?

2. It was the case of the petitioner workman resident of District Meerut,

Uttar Pradesh, that he was appointed as Work Mistry on 13th March, 1984

in the National Seeds Corporation Ltd. (NSCL), having its head office at

Beej Bhawan, Pusa Complex, New Delhi, by its Joint Manager Sh. K.C.

Aggarwal at Delhi; however no appointment letter was issued to him and

he was sent for work first to Bareilly and then to Bhopal and whereafter his

services had been terminated. The respondent NSCL while contesting the

claim of the petitioner workman also contended that the Delhi

Administration which had referred the dispute to the Industrial Tribunal

had no power or right to refer the same and hence the terms of reference

were without jurisdiction and bad in law. It was contended that the

petitioner workman had worked at Bhopal and on completion of the work

at Bhopal, the engagement of the petitioner workman was discontinued;

that he was never appointed on any permanent or temporary post and was

merely a casual worker.

3. On the aforesaid pleadings, the Industrial Tribunal inter alia framed

the following issue:

"Whether the Delhi Administration is not appropriate Government to make reference?"

4. The Industrial Tribunal has vide order impugned in this petition

decided only the aforesaid issue. The Industrial Tribunal has held that

there was no appointment letter issued by the Delhi head office of the

NSCL to the petitioner workman; that the evidence on record showed that

the petitioner workman had worked for the respondent at Bareilly and

Bhopal only; hence the terms of reference forwarded by Delhi

Administration were without jurisdiction, being not vested with any right in

view of no act or deed having taken place at the hands of head office, Delhi

and there being no connection with the utilization of services of the

petitioner workman at Bhopal. It was held that jurisdiction, if at all, is of

the competent authority at Bhopal and not that with the appropriate

government at Delhi. The terms of reference were thus held to be not

maintainable and without jurisdiction.

5. Having held so, though other issues had also been framed but the

Industrial Tribunal deemed it not advisable to discuss or advert on the

same. The award was passed accordingly.

6. Aggrieved from the aforesaid the present petition was preferred.

Rule was issued on 11th May, 2000. The counsels have been heard and the

written synopsis filed by both counsels also perused.

7. The counsel for the petitioner workman has urged two contentions.

Firstly, it is contended that the Industrial Tribunal has erred in not

rendering a decision on the entire matter and disposing of the reference

only on the aspect of jurisdiction / competence of the Delhi Administration

to make the reference. Secondly, it is contended that the Industrial

Tribunal was bound by the reference and not entitled to go into the

question of jurisdiction.

8. As far as the first of the aforesaid submissions is concerned, the

counsel for the petitioner workman relies on:

(i) D.P. Maheshwari Vs. Delhi Administration (1983) 4 SCC

293 in which the Supreme Court held that Tribunals

particularly those entrusted with the task of adjudicating

labour disputes where delay may lead to misery and jeopardise

industrial peace, should decide all issues in dispute at the same

time without trying some of them as preliminary issues. It was

further held that the High Courts in the exercise of their

jurisdiction under Article 226 of the Constitution ought not to

stop proceedings before a Tribunal so that a preliminary issue

may be decided by them. It was yet further held that the

jurisdiction of the High Court ought not to be allowed to be

exploited by those who can well afford to wait to the detriment

of those who can ill afford to wait by dragging the latter from

Court to Court for adjudication of peripheral issues, avoiding

decision on issues more vital to them.

         (ii)      Shops and Commercial Workers Union vs. Management of

                   Ayurvedic      &      Unani      Tibbia      College         Board

MANU/DE/0176/1979 where also the Industrial Tribunal held

the employer to be not an industry and for this reason did not

answer the dispute referred to it. This Court held it to be

unfortunate that the Industrial Tribunal had not decided the

matter on merits. It was observed that resultantly 13 years

after the reference and 10 years after the decision of the

Tribunal and filing of the writ petition had elapsed without a

decision on merits. The course adopted by the Tribunal by

deciding only the preliminary point was deprecated and it was

held that the Industrial Tribunal should decide a reference

fully even when the matter of jurisdiction is raised before it. It

was further observed that had the decision been given on

merits of the dispute between the parties, the delay

necessitated in remand could have been avoided.

9. The counsel for the respondent NSCL has neither in oral submission

nor in written synopsis been able to rebut the aforesaid. In the present case

also, this writ petition has remained pending for the last about 12 years and

if the reasoning of the Tribunal is to be set aside, this Court would have no

option but to remand the matter. It is unfortunate that the Industrial

Tribunal, inspite of the settled legal position, as aforesaid, has chosen to

adopt the practice / course which had been commented upon adversely by

the Courts.

10. There is merit in the second contention also of the counsel for the

petitioner workman. The counsel for the petitioner workman has in this

regard relied on National Engineering Industries Ltd. Vs. State of

Rajasthan (2000) 1 SCC 371 laying down that an Industrial Tribunal is the

creation of a Statute and its jurisdiction is on the basis of reference and it

cannot go into the question of the validity of the reference. Reliance in this

regard is also placed on Karan Singh Vs. Executive Engineer 2007 LLR

1233 laying down that if the employer says that the workman has made a

stale claim then the employer must challenge the reference by way of writ

petition on the ground of delay and deny existence of industrial dispute and

the Industrial Tribunal cannot strike down the reference on this ground. I

have also had occasion recently to deal with the said aspect in Raj Kumar

Jaiswal Vs. Rangi International Pvt. Ltd. MANU/DE/2859/2009 and have

similarly held that if there is any grievance with respect to the reference,

the remedy is by way of challenge to the reference and that under Section

10(4), 11 and 14 of the Industrial Disputes Act the Labour Court to whom

the dispute has been referred is not entitled to take a plea that it lacked

jurisdiction or to refuse adjudication referred to it on that ground.

11. Though the writ petition is entitled to be allowed on this ground

alone but I may add that I have in Raj Kumar Jaiswal (supra) also held that

industrial dispute arises at the place where the employer is exercising

effective control; the State Government having jurisdiction over the place

from which the employer exercises effective control would have

jurisdiction to make the reference under Section 2 of the I.D. Act. In that

case, the registered office of the employer company was at Delhi. In the

present case, the head office of NSCL is at Delhi. Nothing has been shown

that there was a separate establishment of NSCL at Bareilly or at Bhopal

and only when a separate establishment had been proved could the dispute

be said to have arisen at Bhopal. There is no finding on this aspect in the

impugned order also. Reliance in this regard can be placed on Bikash

Bhushan Ghosh Vs. Novartis India Limited (2007) 5 SCC 591 also. The

Supreme Court in that case also added the test of whether any prejudice is

suffered by the party objecting to the jurisdiction. The question of the

respondent NSCL, which has its head office in Delhi suffering any

prejudice in contesting the dispute at Delhi, does not arise. No prejudice

has been pleaded or proved.

12. The counsel for the respondent NSCL has relied on:

(i) Workmen of Shri Rangavilas Motors (P.) Ltd. Vs. Shri

Rangavilas Motors (P) Ltd. AIR 1967 SC 1040. However,

the same only lays down that "ordinarily" the dispute arises at

the place where the workman is working and not at the head

quarters of the industry. Moreover, the said judgment has also

been dealt with in the recent judgment in Bikash Bhushan

Ghosh (supra).

(ii) Hindustan Samachar Vs. State of Orissa 1979 LAB. I.C.

106. In this, a Division Bench of the Orissa High Court held

that merely because the head office exercises administrative

control over the workman, does not confer jurisdiction on the

government within whose territorial jurisdiction the head

office is located to make a reference under Section 10 of the

Industrial Disputes Act. I, however, am unable to agree with

the said view for the reason aforesaid and particularly in view

of the judgment in Bikash Bhushan Ghosh (supra).

(iii) M/s Hindustan Aeronautics Ltd. Vs. The Workmen AIR

1975 SC 1737; this merely holds that the appropriate

government of the place where the branch office is situated

would also have jurisdiction to refer the dispute and otherwise

does not controvert the conclusion reached by me

hereinabove.

13. The order of the Industrial Tribunal thus cannot be sustained and is

set aside / quashed.

14. Before parting, I must notice that the legislature has made a

provision (in Section 17B of the ID Act) for protecting the interest of the

workmen in the event of delays in the disposal of the writ petitions

impugning the awards of reinstatement in favour of the workmen.

However due to the course which has been adopted in the present case, the

petitioner workman has become disentitled to the said benefit also. Though

the petition has remained pending in this Court for 12 years but no order

for payment of any subsistence allowance also could be made.

15. Thus while allowing the petition:-

(i) The parties are directed to appear before the Industrial

Tribunal on 6th July, 2010 and the Industrial Tribunal is

directed to dispose of the reference now within eight months

of the date when the parties first appear before the Industrial

Tribunal.

(ii) The petitioner workman is also awarded costs of this writ

petition of Rs.20,000/- against the respondent NSCL payable

to the petitioner workman within six weeks of today.

RAJIV SAHAI ENDLAW (JUDGE) 11th May, 2010 gsr