B. N. Gupta v. Suraj Bhan — 1979 DIGILAW 319 (ALL)

JUDGMENT N. D. OJHA, J. 1. M/s Northern India Theatres, Chandni Chowk, Delhi is a partnership firm and runs a Cinema Talkies at Saharanpur in the name of 'Vijay Talkies'. Suraj Bhan (respondent No. 1) was employed in Vijay Talkies at Saharanpur as a gate-keeper-cum-booking clerk. By its order dated 24th July, 1970, the employers transferred respondent No. 1 to Delhi. At the instance of respondent No. 1, an industrial dispute was referred by the State Government to the Labour Court, Meerut, respondent No. 3, as to whether the order of the employers dated 24th July, 1970 transferring respondent No. 1 was proper and legal and if not, to what relief/damages was the respondent No. 1 entitled and with what other details ? The Labour Court, by its award dated 28th October, 1972 held that the order of transfer was not proper and legal and accordingly directed the employers to give the respondent No. 1 his old job at Vijay Talkies, Saharanpur. A further direction was issued that be may be paid his back wages, after deducting the amount earned by him during his employment as gate keeper from February 18, 1971 to June 30, 1972 in M/s. Rakesh Cinema, Saharanpur, at the rate of Rs. 60/- per month. It is this award which is sought to be quashed in the present writ petition. 2. It was urged by counsel for the petitioner that the same dispute, which was decided by the Labour Court by its impugned award, had been referred to it earlier by the State Government on 18th September, 1971 and an award was given on 16th February, 1972, holding that respondent No. 1 was not entitled to any relief. According to counsel for the petitioner, in view of this award, a second reference was incompetent. Reliance has been placed on Section 6 of the U.P. Industrial Disputes Act, sub-section (5) whereof makes an award, given by the Labour Court, final, not liable to be called in question in any Court in any manner whatsoever. According to counsel for the petitioner, in view of this award, a second reference was incompetent. Reliance has been placed on Section 6 of the U.P. Industrial Disputes Act, sub-section (5) whereof makes an award, given by the Labour Court, final, not liable to be called in question in any Court in any manner whatsoever. IT was further urged that the said award having been published in the U. P. Gazette dated 18th April, 1972 became enforceable on the expiry of 30 days from the said date in view of Section 6-A of the Act and since the said award was to remain in operation for one year, in view of Section 60 of the Act, the second reference as made on 20th June, 1972 was invalid. On the facts of the instant case, we are not inclined to accept this argument. The term 'award' has been defined in Section 2 (c). According to this definition, award means an interim or final determination on any industrial dispute or on any question relating thereto by the Labour Court or Tribunal and includes an Arbitration award made under Section 5-B. The words "interim or final determination" are of significance. It is only if there has been interim or final determination of any industrial dispute, or any question relating thereto that an award can be said to come into being in law. A copy of the award dated 16th February, 1972, relied on by counsel for the petitioner, has been filed as 'Annexure 3' to the writ petition. The only ground on which it was held that the workman was not entitled to any relief, was that an application had been made on behalf of Union of the workmen that it did not want to press the claim. A copy of the application referred to in the award had been filed as 'Annexure 1' to the counter affidavit. It has three paragraphs and it will be relevant to quote them here. It reads : "1. That the above mentioned case is fixed for arguments on the point of legal entity before this learned Court on 16-2-1972. 2. That it is admitted by the workmen that M/s Vijay Talkies Saharanpur is unit of M/s Northern India Theatres Delhi having its head office at Delhi. 3. That in view of the above legal flaw we have decided not to contest the case on merit. 2. That it is admitted by the workmen that M/s Vijay Talkies Saharanpur is unit of M/s Northern India Theatres Delhi having its head office at Delhi. 3. That in view of the above legal flaw we have decided not to contest the case on merit. We are moving the Government to withdraw the reference order and make a fresh reference or amend the present one describing the employers as they deem fit." 3. From a perusal of the impugned award it appears that in that case an objection had been raised on behalf of the employer that Vijay Talkies which was mentioned as the employer in the reference was only a unit of M/s Northern India Theatres, Delhi. It appears that on its place it was asserted on behalf of the employer that the reference was not proper. The use of the word "admitted" in paragraph 2 of the application made by the Union referred to above makes it clear that the objection in this behalf had been raised by the employer and the legal defect was by that application admitted by the Union of workmen. The award as seen above was given only on the basis of this application and not on merits. In these circumstances it cannot be said that there was any determination of the dispute referred to the Labour Court as contemplated by the definition of the term "award". Even if for the sake of argument it may be accepted that the award was final in view of Section 6 (5) of the Act, the finality would be only this to extent, that the Labour Court refused to determine the question referred to it on merits on the basis of the application made by the Union of workmen accepting the plea raised by the employer that the reference was not proper inasmuch as the employers' name was mentioned as Vijay Talkies in place of Northern India Theatres. In the second reference on the basis of which the impugned award was given the name of the employer was mentioned as 'Northern India Theatres' which according to the stand taken by the employer in the earlier reference was the proper person to be shown as the employer. 4. Much emphasis was placed by the counsel for the petitioner on words occurring in the award to the effect that the workman was not entitled to any relief. 4. Much emphasis was placed by the counsel for the petitioner on words occurring in the award to the effect that the workman was not entitled to any relief. In such matters it is really the substance and not the form which is the determining factor. As seen above there was no determination of the dispute by the Labour Court on merits. The words on which reliance has been placed by counsel for the petitioner, in our opinion, only meant that the workman was not entitled to any relief in that reference. Accordingly, we find no substance in the submission that on account of the award dated 16th February, 1972 the second reference was bad. It was then urged that after the award dated 16th February, 1972 no fresh demand was made by the workmen to the employer and consequently the second reference was bad. We find no substance in this submission either. It is not the case of the petitioner that no demand had been made to the employer in regard to the subject matter of the reference at all. Indeed in paragraph 5 of the writ petition, it has been specifically stated that the respondent No. 1, through the cinema Karamchari Sangh, raised a demand against the petitioner alleging that the respondent No. 1 has been transferred from Saharanpur to Delhi with a mala fide intention and with a view to victimise the respondent No. 1. That a demand was made, therefore, stands admitted to the petitioner. What was urged by counsel for the petitioner, however, is that this demand had been made prior to the making of the first reference, and since in the first reference Vijay Talkies was shown as the employer it can be presumed that the demand was also made to the Vijay Talkies and not to the Northern India Theatres. If this point was to be urged by the petitioner, the notice of demand which was admittedly served on the employers should have been produced. That not having been done the petitioner is not entitled to urge that it may be presumed that the demand was made to the employers particularly when paragraph 5 of the writ petition itself contains an admission that the demand was made to the petitioner, meaning thereby, the petitioner in the writ petition. That not having been done the petitioner is not entitled to urge that it may be presumed that the demand was made to the employers particularly when paragraph 5 of the writ petition itself contains an admission that the demand was made to the petitioner, meaning thereby, the petitioner in the writ petition. Once a demand had been made and a dispute was referred for adjudication to the Labour Court and that dispute was not decided on merits, the dispute persisted and did not get exhausted. In this background the Government continued to have the power to make another reference after removing the defects in the earlier reference for adjudication of the dispute which still persisted. In view which we take finds support from the decision of the Supreme Court In A. S. Production Agencies v. Industrial Tribunal Baryana AIR 1979 SC p. 170 = 1918 (37) Fac, LR 363. No other point has been pressed. 5. In the result, the writ petition fails and is dismissed with costs. The interim order is vacated.