Orissa High Court
M/S. Boc India Limited vs Shri Paramananda Das And Others on 24 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 24101 of 2022
(Through hybrid mode)
M/s. BOC India Limited, .... Petitioner
Sundargarh
-versus-
Shri Paramananda Das and others .... Opposite Parties
Advocates appeared in the case:
For petitioner - Ms. Anindita Pujari, Advocate
For Opp. Parties - Mr. Tusar Ku. Mishra, Advocate
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
24.01.2023
ARINDAM SINHA, J.
1. Ms. Pujari, learned advocate appears on behalf of petitioner
(management). She submits, impugned is order dated 6th July, 2022
made by the labour Court rejecting her client's petition dated 10th
March, 2022 for adding the contractor as party. She submits, the
// 2 //
workmen were employed by the contractor. For purpose of effective
adjudication on the reference, the contractor is a necessary and proper
party.
2. Mr. Mishra, learned advocate appears on behalf of the
workmen and relies on judgment of the Supreme Court in Globe
Ground (India) Employees Union v. Lufthansa German Airlines
reported in (2019) 15 SCC 273, paragraphs 18 and 19. In that context
he also relies on sub-section (4) in section 10 of Industrial Disputes
Act, 1947. Paragraph-19 is reproduced below.
"19.Further, having regard to limited scope of
adjudication, to answer the reference, which is
circumscribed by Section 10(4) of the Industrial
Disputes Act, 1947, we are of the view that the first
respondent is neither necessary nor proper party, to
answer the reference by the Industrial Court."
3. On query from Court Ms. Pujari submits, grounds have been
taken in the writ petition. We reproduce below ground-C.
"C. BECAUSE the Ld. Industrial Tribunal erred in not
appreciating that in order to adjudicate the issue of
existence/non-existence of employer-employee
relationship between the petitioner and the Opp.
Parties it is essential that the contractor is made a
party as it is only the contractor who can lead
// 3 //
necessary evidence to establish the employment
relation, if any amongst the petitioner, the opposite
parties and itself.
(emphasis supplied)
4. Section 11 provides for procedure and power of, inter alia
the labour Court. Said Court has been provided to have same powers
as vested in a civil Court under the Code of Civil Procedure, 1908,
when trying a suit in respect of, inter alia, enforcing attendance of any
person for examining him on oath and compelling production of
documents.
5. We find in impugned order, reference to the first decision on
adding parties to the reference, delivered by the Supreme Court in
Hochtief Gammon v. Industrial Tribunal reported in AIR 1964 SC
1746. Law declared on test to be applied is extracted from two
sentences in paragraph-12 reproduced below.
" xx xx xx The test always must be, is the addition of
the party necessary to make the adjudication itself
effective and enforceable? In other words, the test may
well be would the non-joinder of the party make the
arbitration proceedings ineffective and unenforceable?
It is in the light of this test that the implied power of the
Tribunal to add parties must be held to be limited."
// 4 //
It does appear from grounds taken in the writ petition that plea of the
management to implead the contractor is for purpose of
demonstrating in the reference that the workmen were not appointed
by the management but by the contractor. Hence, the management
wants the contractor to be added in the proceedings and be examined.
In that regard we find from paragraph-4 in impugned order that when
the matter was posted for further evidence, after closure of evidence
from the workmen, the management filed the petition for addition of
party.
6. Sub-section (4) in section 10 mandates confinement of the
adjudication to points and matters specified and incidental thereto.
Schedule to the reference is clear in specifying the points of
adjudication to, inter alia, the termination of services of the workmen,
whether legal or justified. For the purpose, clearly, the contractor is
not necessary as a party, to be directed as ought to have been properly
joined. Procedure and power of the labour Court will allow for the
management to enforce attendance of the contractor by summons
issued, for his examination as well as to compel production of
documents in his custody. Accordingly petitioner did not pass muster
on the test for exercise of the limited power of the labour Court,
declared in Hochtief Gammon (supra).
// 5 //
7. Lufthansa German Airlines (supra) has no application
because finding by the Supreme Court in that judgment was in view
of the facts before it.
8. We find no illegality nor material irregularity in impugned
order. Accordingly, no interference is warranted.
9. The writ petition is dismissed.
(Arindam Sinha)
Judge
(M.S. Sahoo)
Judge
Sks
