Karnataka High Court

Us Technology International Pvt Ltd vs Ms Manju S Pillai on 1 August, 2024

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                                                                NC: 2024:KHC:30595
                                                             WP No. 15689 of 2019




                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 1ST DAY OF AUGUST, 2024

                                                 BEFORE

                                THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

                                WRIT PETITION NO.15689 OF 2019 (L-RES)

                      BETWEEN:

                      US TECHNOLOGY INTERNATIONAL PVT. LTD.,
                      (WRONGLY SHOWN AS GST GLOBAL INDIA
                      BY THE RESPONDENT IN THE STATEMENT OF
                      CLAIM BEFORE THE LABOUR COURT)
                      14TH FLOOR, TOWER-B,
                      PRESTIGE SHANTINIKETHAN,
                      WHITEFIELD BANGALORE-560 066
                      REPRESENTED BY MR. JIJU SETHUMADHAVAN
                      SENIOR MANAGER (HR).                           ... PETITIONER

                      (BY SRI SAJI VERGHESE, ADVOCATE FOR
                          SRI K. GOVINDARAJ, ADVOCATE)

                      AND:

                      MS. MANJU S. PILLAI
                      B-302, MSRW DROPS,
Digitally signed by   OFF. KASAVANAHALLI ROAD,
MAHALAKSHMI B M       NEAR SARJAPUR WIPRO OFFICE,
Location: HIGH        BANGALORE-560 035.                            ... RESPONDENT
COURT OF
KARNATAKA
                      (BY SRI V. R. DATAR, ADVOCATE)

                             THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
                      OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
                      DATED 08.03.2019 PASSED IN REFERENCE NO.43/2018 ON THE
                      FILES OF THE II ADDITIONAL LABOUR COURT AT BENGALURU AS
                      PER ANNEXURE-D.


                          THIS WRIT PETITION COMING ON FOR DICTATION, THIS DAY,
                      ORDER WAS MADE THEREIN AS UNDER:
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                                                         NC: 2024:KHC:30595
                                                     WP No. 15689 of 2019




CORAM:        HON'BLE MRS JUSTICE K.S. HEMALEKHA


                                 ORAL ORDER

Framing of an additional issue by order dated

08.03.2019 in Ref. No.43/2018 on the file of the II

Additional Labour Court at Bengaluru, ('the Labour Court'

for short) is assailed by the US Technology International

Private Limited (herein after referred to as the

'management' for short).

2. For the sake of convenience, the respondent is

addressed as 'workman'.

3. On the dispute raised by the workman under

the Industrial Disputes Act, 1947 ('the ID Act' for short),

conciliation proceedings were initiated. Failure of

conciliation led to the dispute being referred to the Labour

Court for adjudication. The issues referred for

adjudication are as under:

"ªÁzÁA±À ªÁzÁA±ÀUÀ¼ÀÄ

1. DqÀ½vÀªÀUÀðzÀªÀgÁzÀ ªÉÄB AiÀÄÄJ¸ïn UÉÆèÃ§¯ï EArAiÀiÁ, 14£ÉÃ ªÀÄºÀr, lªÀgï ©., ¥Éæ¹ÖÃeï ±ÁAw¤PÉÃvÀ£À, ªÉÊmï¦sÃ¯ïØ,

NC: 2024:KHC:30595

¨ÉAUÀ¼ÀÆgÀÄ-66 ¸ÀA¸ÉÜAiÀÄ°è, C¢üÃPÀëPÀ PÉÃqÀgï£À°è, ¹Ã¤AiÀÄgï ¸À¨ÉÓPïÖ ªÀiÁålgï JPïì¥Àmïð-¨ÁAqï ©2 DVzÀÝ ²æÃªÀÄw ªÀÄAdÄ J¸ïB ¦¼ÉîGÊ, ©. 302, JA.J¸ï.Dgï.qÀÆå qÁæ¥ïì, D¥üï PÀ¸ÀªÀ£ÀºÀ½î gÉÆÃqï, ¸ÀeÁð¥ÀÅgÀ «¥ÉÆæÃ D¦sÃ¸ï §½, ¨ÉAUÀ¼ÀÆgÀÄ-35 EªÀgÀÄ PÉÊUÁjPÁ «ªÁzÀ PÁAiÉÄÝ, 1947 PÀ®A 2(J¸ï) gÀr "PÁ«ÄðPÀ" JA§ ¥ÀzÀzÀ ªÁåSÁå£ÀzÀr §gÀÄªÀÅzÁV ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

2. ¸Á©ÃvÀÄ¥Àr¹zÀ°è, ªÉÄÃ AiÀÄÄJ¸ïn UÉÆèÃ§¯ï EArAiÀiÁ, 14£ÉÃ ªÀÄºÀr, lªÀgï ©, ¥Éæ¹ÖÃeï ±ÁAw¤PÉÃvÀ£À, ªÉÊmï¦sÃ¯ïØ, ¨ÉAUÀ¼ÀÆgÀÄ- 66 ¸ÀA¸ÉÜAiÀÄ°è, C¢üÃPÀëPÀ PÉÃqÀgï£À°è, ¹Ã¤AiÀÄgï ¸À¨ÉÓPïÖ ªÀiÁålgï JPïì¥Àmïð-¨ÁAqï ©2 DVzÀÝ ²æÃªÀÄw ªÀÄAdÄ J¸ïB ¦¼ÉîGÊ, ©. 302, JA.J¸ï.Dgï.qÀÆå qÁæ¥ïì, D¥üï PÀ¸ÀªÀ£ÀºÀ½î gÉÆÃqï, ¸ÀeÁð¥ÀÅgÀ «¥ÉÆæÃ D¦sÃ¸ï §½, ¨ÉAUÀ¼ÀÆgÀÄ-35 EªÀjAzÀ ¢£ÁAPÀB10.05.2017 gÀAzÀÄ §®ªÀAvÀªÁV gÁfÃ£ÁªÉÄ ¥ÀqÉzÀÄ PÉ®¸À¢AzÀ ªÀeÁ ªÀiÁrgÀÄªÀgÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÄªÀgÉÃ?

3. ºÁVzÀÝ°è, PÁ«ÄðPÀ¼ÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?"

4. Claim statement was filed by the workman,

contending that her designation was 'Senior Subject

Matter Expert', but she was discharging jobs of purely

technical nature and she is a 'workman' for the purpose of

ID Act. Further, she has discharged her jobs assigned to

her by the official superiors to the best of her capacity and

as such, she has no adverse remarks either on work or

performance or conduct during her tenure with the

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company. It is further averred that in a meeting held on

10.05.2017, Mr. Jino Joy, HR Business Partner (Intel-UST)

office, stated that she had committed an act of misconduct

by trying to open a locked cupboard while she was working

in the Intel Office building and the management was

contemplating taking disciplinary action against her. She

denied the misconduct alleged against her and clarified

that she had access to the inventory in the cupboard, that

she had kept her handbag in one part of cupboard, and

the same is evident from the footage of the CCTV on the

said date from the Intel office. The request of hers for the

CCTV footage was denied, she specifically contended that

she was threatened and forced to resign, and in the event

of her refusal to resign, she was intimated that the

management would take disciplinary action.

5. The counter statement was filed by the

management, inter alia, contending that she was not

doing manual, skilled, unskilled operational or technical

work and that she is not a workman as contemplated

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under Section 2(s) of the ID Act and sought dismissal of

the dispute. The management contended that the

workman committed certain acts of misconduct while she

was working on the project at Intel ODC, where she

opened the lab outside the cupboards of Intel ODC

unauthorizedly without permission and the details of the

misconduct have been enumerated at paragraph No.2 of

the statement, which reads as under:

"2. Without prejudice to the above contentions it is submitted that the I Party has not come with clean hands before this Hon'ble Court.

She had joined the service of the II party as Senior Subject matter Expert - Band B2 on 11th April 2016. The I Party, while employed as above with the II Party had committed certain acts of misconduct while working in a project in INTEL ODC, a client of the II Party, On 2.5.2017, she had opened the Lab outside cupboards of INTEL ODC, at the premises of INTEL at SRR2 1st Floor, C wing, CRD4 Lab, unauthorizedly without permission. The Cup boards in this facility carried the IP (Intellectual Property) related material of INTEL and leakage of IP will have a major adverse impact on INTEL and can lead to even losing their business.

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Being a Research and Development facility, INTEL is very particular about protecting their IP since any breach on confidentiality of IP can have far reaching consequences on their business. Based on the complaint of INTEL ODC, the II Party was about to initiate disciplinary proceedings against her. At that juncture she had offered to resign from the II Party Company and requested not to initiate disciplinary proceedings against her. She pleaded that if disciplinary proceedings are initiated and punishment is imposed on her that will be a stigma on her which will affect her future prospects to get another employment. Hence she requested to permit her to resign from the II Party's service and accordingly she had submitted her resignation on 10.5.2017 requesting to relieve her on the same day which was accepted by II Party and she was relieved from service."

(Emphasis supplied)

6. It is averred that as the management was to

initiate disciplinary proceedings against the workman, the

workman offered to resign and requested not to initiate

disciplinary action and voluntarily resigned from the

service to avoid disciplinary action. Further, it is averred at

paragraph No.5 as under:

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"5. Since the II Party did not accede to her request for fresh employment, the I Party, after having voluntarily resigned from the service of the II Party to avoid disciplinary action and after receiving all the amounts due from the II Party and appropriating the same without any demur, turned around and raised the alleged industrial dispute stating that she has been forced to resign from the II Party Company. It is pertinent to point out that she was also unauthorizedly involved in some other business along with her husband while in service of the II Party which is also misconduct and it appears that the I Party and her husband incurred huge liabilities to some erstwhile employees of II Party.

In the conciliation proceedings, before the Conciliation Officer, the I Party had claimed huge amounts of compensation from the II Party, to drop further proceedings. She was also provided with an additional copy of the experience certificate, on her request during the conciliation proceedings. On reference of the dispute to this Hon'ble Court, the I Party has taken up a new contention in her statement of claim filed before this Hon'ble Court that she had not even signed the resignation letter and it was only a draft. The statement of claim has been made without any bonafides. It is submitted that the above reference is a gross abuse of

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process of this Hon'ble Court. The reference is incompetent and invalid as well.

(Emphasis supplied)

7. The Labour Court on 08.03.2019 framed the

additional issue which read as under:

"Whether second party proves that first party has unauthorisedly involved in some other business alongwith her husband while in service, which is also misconduct?"

8. Learned counsel for the petitioner submits that

the Labour Court, having derived its jurisdiction from the

reference made by the State Government, could not travel

beyond the order of reference and the Tribunal has to

confine its adjudication to the points of dispute referred

and the matter incidental to the dispute. The additional

issue framed by the Labour Court, according to the

learned counsel, is not something incidental to the dispute

referred to, and the framing of the additional issue is one

without jurisdiction warranting interference by this Court.

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9. In support of his contention, learned counsel

relies upon the following decisions:

1. The Delhi Cloth and General Mills Co. Ltd.,

vs. The Workmen and others1 (Delhi Cloth

and General Mills)

2. Mahendra L. Jain and others vs. Indore

Development Authority and others2

(Mahendra L. Jain)

3. Oshiar Prasad and others vs. Employers in

Relation to Management of Sudamdih Coal

Washery of M/s Bharat Coking Coal

Limited, Dhanbad, Jharkhand3 (Oshiar

Prasad)

4. Mukand Ltd. vs. Mukand Staff and Officers'

Association4 (Mukand Ltd.)

5. Bhogpur Cooperative Sugar Mills Ltd. vs.

Harmesh Kumar5 (Bhogpur Cooperative Sugar

Mills)

(1967) 1 SCR 882

(2005) 1 SCC 639

(2015) 4 SCC 71

(2004) 10 SCC 460

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6. State Bank of Bikaner and Jaipur vs. Om

Prakash Sharma6 (Om Prakash Sharma)

10. Per contra, learned counsel appearing for the

respondent, justifying the framing of additional issue,

contends that the Labour Court may frame such other

issues, if any, as may arise from the pleadings. Taking

the Court to the counter statement filed by the

management and the decision of the Apex Court in the

case of Anoop Jaiswal vs. Government of India and

another7, submits that the additional issue assumes

importance as incidental to the points of reference to find

out the truth of the order of dismissal, whether it is based

on extraneous or malafide consideration and therefore, the

action of the termination / dismissal to be gone into by the

Labour Court. Learned counsel submits that it is always

open to the Court before which the order is challenged to

go beyond the form and ascertain the true character of the

voluntary retirement.

(2006) 13 SCC 28

(2006) 5 SCC 123

AIR 1984 SC 636

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11. In support of his contentions, learned counsel

placed reliance on the following decisions:

1. First Flight Couriers Ltd., vs. Karnataka

Courier & Cargo General Employees' Union,

CITU Office and another8 (First Flight

Couriers Ltd)

2. Shankar Chakravarti vs. Britannia Biscuit

Co. Ltd. and another9 (Shankar Chakravarti)

3. Workmen of the Straw Board

Manufacturing Co., Ltd. vs. M/s. Straw

Board Manufacturing Co. Ltd.,10 (Workmen

of the Straw Board)

4. Anoop Jaiswal vs. Government of India

and another11 (Anoop Jaiswal)

5. Dipti Prakash Banerjee vs. Satyendra Nath

Bose National Centre for Basic Sciences,

2001 (89) FLR 277

(1979) 3 SCC 371

AIR 1974 SC 1132

AIR 1984 SC 636

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Calcutta and others12 (Dipti Prakash

Banerjee)

6. Makhan Lal Bangal vs. Manas Bhunia and

others13 (Makhan Lal Bangal)

7. Delhi Cloth and General Mills Co. Ltd., vs.

Workmen and others14 (Delhi Cloth and

General Mills)

12. Having heard the learned counsel for the

parties, the point that arises for consideration is:

"Whether the Labour Court was justified in framing additional issue in the present facts and circumstances of the case?"

13. An industrial Tribunal is a creation of statute,

hence, its jurisdiction is circumscribed by the Act, its

adjudication must, therefore, be confined to the perimeter

of the provisions of the Act. It cannot dispense its own

brand of industrial dispute, it may, of course look for

guidance, to various sources, yet its award is legitimate

(1999) 3 SCC 60

AIR 2001 SC 490

AIR 1967 SC 469

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only so long as it draws its sustenance from the order of

reference.

14. Section 10 (1) of the ID Act reads as under:

"10. Reference of dispute to Boards, Courts or Tribunals. (1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing--

(a) refer the dispute to a Board for promoting a settlement thereof; or

(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or

(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

Provided that where the dispute relates to any matter specified in the Third Schedule and is not

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likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause

(c):

Provided further that where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:

Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for the Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government."

15. Section 10(4) of the ID Act reads as under:

"10. Reference of disputes to Boards, Courts or Tribunals.-

(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

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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."

16. Section 10(4) lays down that the adjudication

by the Tribunal is to be confined only to:

i. Points specified in the reference and

ii. The matters incidental thereto.

17. The law is well settled that the Tribunal is not

free to enlarge the scope of the dispute referred to it. In

the instant case, the State Government referred the issues

for adjudication, the translated Kannada language of the

issues is enumerated as under:

"i) Whether Smt. Manju S Pillai, B 302, MSRW Drops, Off Kasavanahalli Road, Near Sarjapur Wipro Office, Bangalore-560035, who was working in Superintendent cadre as Senior Subject Matter Expert-Band B2, in the Management of M/S UST Global India, 14th Floor, Tower-B, Prestige Shanthinikethan, Whitefield, Bangalore-66, proves that she is a 'Workman' as defined under Section 2(s) of the Industrial Disputes act, 1947?

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ii) If proved, whether Claimant proves that the Management of M/S UST Global India, 14th Floor, Tower-B, Prestige Shanthinikethan, Whitefield, Bangalore-66 has forcefully obtained resignation of Smt. Manju S Pillai B 302, MSRW Drops, Off Kasavanahalli Road, Near Sarjapur Wipro Office, Bangalore-560035, who was in Superintendent cadre as Senior Subject Matter Expert-Band B2, and thereby dismissed her from services on 10/05/2017?

iii) If yes, for what relief Workman is entitled to?"

18. The issue referred for adjudication is regarding

whether the petitioner is a 'workman' as defined under

Section 2(s) of the ID Act and whether the claimant

proves that the management has forcibly obtained her

resignation and dismissed her from service on 10.05.2017.

The management, in its counter statement, contended

that the misconduct on the part of the workman was on

account of having "opened the lab cupboards of Intel ODC

unauthorizedly without permission," which is evident from

paragraph No.2 of the counter statement. Further, in the

statement, it is mentioned that, as the management was

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supposed to initiate disciplinary action for the above

misconduct, it was at that time, the workman was offered

for voluntary retirement.

19. The workman in her claim statement has also

urged the very ground about the alleged act of misconduct

of trying to open a locked cupboard, as is evident from

paragraph Nos.4 and 5. The management, in its counter

statement at paragraph No. 5, revealed some misconduct

on the part of the workman. The misconduct as stated at

paragraph No.5 cannot be attributed to be incidental to

the dispute referred for adjudication. The Labour Court,

by framing of additional issues, has traveled beyond the

scope of reference made by the State Government and

enlarged the scope of reference. Merely because in the

counter statement, the management has referred to

certain acts of misconduct does not make a dispute for the

Labour Court to frame an additional issue and it cannot be

said that the additional issue framed is incidental to the

dispute referred. The Labour Court fell into jurisdictional

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error and the same can be interfered with by this Court

under Articles 226 and 227.

20. The Apex Court in the case of Om Prakash

Sharma has held at paragraph Nos.12 and 14 as under:

"12. 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 Articles 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 an inferior Tribunal is no longer res integra.

                          x     x      x
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14. 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 is allowed and the judgment of the High Court is set aside. The award is set aside to the extent of the order of reinstatement with back wages. The writ petition filed by the appellant in the High Court is, thus, allowed."

21. The Apex Court in the case of Mahendra L.

Jain has held that the Labour Court having derived its

jurisdiction from the reference made by the government, it

was bound to act within the four-corners thereof, it could

not enlarge the scope of reference nor could deviate there

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from. A demand which was not raised at the time of

raising the dispute could not have been gone into by the

Labour Court being not the subject matter thereof.

22. Additional issue raised by the Labour Court is

not incidental to a dispute and the Apex Court in the case

of Delhi Cloth and General Mills has held at paragraph

No.21 as under:

"21. 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, the Tribunal must confine its 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:"

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"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. In the light of the above, it would appear that the third issue was framed on the basis that there was a strike and there was a lockout and it was for the Industrial Tribunal to examine the facts and circumstances leading to the strike and the lockout and to come to a decision as to whether one or the other or both were justified. On the issue as framed it would not be open to the workmen to question the existence of the strike, or, to the Management to deny the declaration of a lockout. The parties were to be allowed to lead evidence to show that the strike was not justified or that the lockout was improper. The third issue has also a sub-issue, namely, if the lockout was not legal, whether the workmen were entitled to wages for the period of the lockout. Similarly, the fourth issue proceeds on the basis that there was a sit-down-strike in the Swatantra Bharat Mills on 23-2-1966 and the question referred was as to the propriety or legality of the same. It was not for any of the Unions to contend on the issues as framed that there was no

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sit-down strike. On their success on the plea of justification of the sit-down strike depended their claim to wages for the period of the strike."

23. The order of framing additional issue is not

confined to the adjudication to the points of dispute

referred and matter incidental thereto and accordingly, the

Labour Court was not justified in framing the additional

issue and the point framed for consideration is answered

accordingly and this Court pass the following: