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Allahabad High Court · body

1990 DIGILAW 204 (ALL)

BIJILI MAZDOOR SANGH v. INDUSTRIAL TRIBUNAL

1990-02-19

R.A.SHARMA

body1990
R. A. SHARMA, J. ( 1 ) GOVERNMENT of U. P. in exercise of power under Section 4-K of U. P. Industrial Disputes Act, 1947 (hereinafter referred to as Act), referred the two questions to the Industrial Tribunal-1 at allahabad, relating to the legality and propriety of termination of services of the two workmen, named therein and about regularisation and confirmation of services of these two workmen. The order of reference as translated into English is quoted below: (1) Whether termination of services of the two workmen, Mohammad Jamil, son of shahamatullah and Nand Lal, son of Ram Kishan, of Civil Contraction department with effect from 1. 2. 1979, is proper/legal? if not, to what relief the workmen are entitled? (2) If the aforesaid decision is given in favour of the workmen then whether the employer should have declared these workmen as confirmed/permanent ? ( 2 ) THE Industrial Tribunal in pursuance of aforesaid reference registered the case as adjudication Case No. 168 of 1980 and vide its Award, dated 17. 8. 1981 (Annexure 5 to writ petition) held termination of services of the two concerned workmen to be improper and illegal and directed their reinstatement with effect from 1. 2. 1979 with continuity of service. However, the Industrial Tribunal completely omitted to consider the second question referred to it regarding confirmation of the workmen. ( 3 ) BOTH the workmen as such made an application under Section 6 (6) of the Act to Industrial tribunal for deciding the second question referred to it. This application was rejected by industrial Tribunal vide its order, dated 30. 8. 1983, on the ground that Section 6 (6) does not postulate giving of the whole Award on the issue. Relevant extract of the order of the Tribunal is quoted below: "the expression omission in the context would suggest that the Tribunal clearly intended to do a thing but missed it by inadvertence. This does not seem to be the position in the present case. Section 6 (6) does not postulate giving of a whole award on an issue. So, if there indeed was an omission it was not an omission of nature whose correction could be deemed postulated by section 6 (6) of the Act". The workmen has filed this writ petition before this Court for quashing the order, dated 30. 8. Section 6 (6) does not postulate giving of a whole award on an issue. So, if there indeed was an omission it was not an omission of nature whose correction could be deemed postulated by section 6 (6) of the Act". The workmen has filed this writ petition before this Court for quashing the order, dated 30. 8. 1983 and for direction to the Tribunal to decide the second issue/question referred to it by government. ( 4 ) SECTION 6 (6) of the Act authorises Industrial Tribunal either of its own motion or on application of any party to the dispute to correct any clerical or arithmetical mistake in the award or errors arising therein from any accidental slip or omission. Sub-section (6) is quoted below: "a Labour Court, Tribunal or Arbitrator may either of its own motion or on the application of any party to the dispute, correct any clerical or arithmetical mistakes in the Award or errors arising either from any accidental slip or omission, whenever any correction is made as aforesaid, a copy of the order shall be sent to the State Government and the provision of this Act, relating to the publication of an Award mutatis mutandis apply thereto". Industrial Tribunal can correct not only clerical and arithmetical mistake but also errors in the award, arising from any accidental slip or omission. Omission to decide by Industrial Tribunal a question/issue referred to it by the Government is an error which is liable to be corrected by the tribunal. In Tulsipur Sugar Company v. State of U. P. : 1969 (2) LLJ 662 two questions were referred to Labour Court but the Labour Court while giving the Award decided only first question and second question was completely omitted from being decided. After the publication of the Award an application under Section 6 (6) of the Act was moved before the Labour Court for deciding the second question, and the Labour Court accordingly decided the second question and amended its Award on the ground that it had omitted to answer the second question referred to it by the Government. After the publication of the Award an application under Section 6 (6) of the Act was moved before the Labour Court for deciding the second question, and the Labour Court accordingly decided the second question and amended its Award on the ground that it had omitted to answer the second question referred to it by the Government. The Supreme Court upheld the Award of the Labour Court, relevant extract of the judgment is quoted below: "as rightly held by High Court the Labour Court thus omitted to answer the second question as it was bound to do and reference remained partly unadjudicated", and it was held to be an error arising from accidental omission to answer that part of the reference. The Supreme Court observed: "in our view the error which the Labour Court corrected clearly fell within Section 6 (6) and could be corrected even after the Award had become final as a result of its having been published and had become enforceable under Section 6-A". Supreme Court in M. M. B. Catholicos v. M. P. Athanasius AIR 1954 SC 526 has laid down that omission to decide an important issue is error apparent on the face of the record. Extract from the judgment is quoted below:"the majority, judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. This in our opinion, is certainly an error apparent on the face of record". ( 5 ) AS the Industrial Tribunal has omitted to consider the second issue/question referred to it by the Government it has committed manifest error of law and, therefore, even if the case does not fall under Section 6 (6) of the Act, it is a fit case where writ in the nature of mandamus be issued to the Industrial Tribunal for deciding the second question referred to it by the Government. ( 6 ) THE writ petition, as such, is liable to be allowed. The order, dated 30. 8. ( 6 ) THE writ petition, as such, is liable to be allowed. The order, dated 30. 8. 1983 (Annexure 10 to the writ petition) is quashed and Industrial Tribunal-1 U. P. at Allahabad is directed to decide the second question relating to confirmation/permanency of the two workmen, named in the reference within a period of three months from the date of receipt of certified copy of this judgment the writ petition is accordingly allowed with costs. .