Kerala State Co-Op. E. Front v. Chandramathi Amma — 1996 DIGILAW 132 (KER)

Judgment :- Koshy, J. The writ appeal is filed by respondents 6 and 7 in the original petition. The original petition was filed challenging Ext, P8 award of the Industrial Tribunal, Kollam. The above award of the Industrial Tribunal was held to be vitiated by the learned Single Judge on the ground of violation of the principles of natural justice. 2. First respondent in this writ appeal (original petitioner) was appointed as a Clerk in the Oachira Service Co-op. Bank Ltd. with effect from 21.12.1973. She is a graduate and had passed Junior Diploma in Co-operation. The above Co-operative Bank was a Class V credit Society prior to 1.1.1974 and it is classified as a Class IV Society as per order dt. 23.2.1985. Pursuant thereto, the Bank adopted a staff pattern consisting of one Secretary, Accountant, Senior Clerk, Junior Clerk Attender. First respondent in this Writ Appeal made representations on 31.5.1985 and 2.7.1985 for granting her promotion as Accountant since she was the only senior qualified person entitled to promotion. While so, Administrator took charge of the control of the Bank from 21.6-1985. The second appellant was appointed in the service of the Bank as a field man on 10.12.1970. He has only the qualification of Secondary School Leaving Certificate (failed) and was not having Junior Diploma in Co-operation. He was promoted as Junior Clerk on 4.11.1972 and later promoted as Cashier-cum-Clerk. The above post was also equivalent to the post of Junior Clerk. It was alleged that he influenced the Administrator as well as the Joint Registrar for granting him promotion. Therefore, first respondent filed O. P. No. 7272 of 1985 seeking a writ of mandamus directing the Joint Registrar of Co-operative Societies and the Administrator to promote her to the post of Accountant and to pass other consequential orders. This Court disposed of the Writ Petition on 14.2.1986 with a direction to the Joint Registrar and Administrator to dispose of the representation submitted by the petitioner after hearing all the parties. On the basis of the above, the second appellant was reverted by proceedings dt. 17.3.1986. The 'Administrator finalised the seniority list on 5.4.1986 (Ext. P3), Against that original petitioner filed another representation Ext. P4, dt. 26.10.1986 before the Board of Directors. On the basis of the above, the second appellant was reverted by proceedings dt. 17.3.1986. The 'Administrator finalised the seniority list on 5.4.1986 (Ext. P3), Against that original petitioner filed another representation Ext. P4, dt. 26.10.1986 before the Board of Directors. The Joint Registrar gave approval to relax the qualification of the second appellant on 21.4.1986 and consequently, his appointment as Accountant was approved, eventhough he had no requisite qualification. The original petitioner filed a revision petition before the Government of Kerala challenging the order of the Joint Registrar approving relaxation of qualification in favour of the second appellant. The revision was allowed by the Government by Ext. P5 order dt. 17.9.1987 setting aside the order passed by the Joint Registrar dt. 11.2.1986. Second appellant thereupon challenged the above order before this court by filing O. P. No. 7746 of 1987. This Court directed the Government to consider the matter afresh after giving an opportunity of being heard to all parties. Ext. P6 representation was then filed. By Ext. P7 dt. 20.8.1988, Government passed an order holding that second appellant was not entitled to exemption from qualification. It was also found that second appellant was never posted as Cashier and mat he was only a Cashier-cum-Clerk which has to be taken on par with the Clerk. It was also found that the departmental officers favoured the second appellant, Government therefore, ordered that promotion given to the second appellant as Accountant was not in order and the original petitioner has got better claims for the post of Accountant. Accordingly, second appellant was reverted from the post of Accountant and promoted the original petitioner as Senior Clerk with effect from 12.2.1986 and as Accountant from 19.9.1988. The second appellant through the first appellant union raised an industrial dispute challenging me reversion and it was numbered as I. D. No. 160 of 1989 before the Industrial Tribunal, Kollam. 3. Since the reversion of the second appellant was referred for adjudication, if any relief was granted to the second appellant, that will directly affect the original petitioner as consequently she will be reverted. Her valuable civil rights will be affected if the dispute referred for adjudication is adjudicated by the Industrial Tribunal without hearing her. However, without hearing the original petitioner, that is without hearing the affected party, hearing one side of the matter, Industrial Tribunal passed Ext. Her valuable civil rights will be affected if the dispute referred for adjudication is adjudicated by the Industrial Tribunal without hearing her. However, without hearing the original petitioner, that is without hearing the affected party, hearing one side of the matter, Industrial Tribunal passed Ext. P8 award holding that reversion of the second appellant is bad in law. The above award was challenged by the original petitioner on the ground that the Tribunal had no jurisdiction to entertain the dispute which was already the subject matter of the decision of the Government pursuant to a direction issued by this Court in the judgment in O. P. No. 7746 of 1987. The above decision of the Government in pursuance of the judgment of this Court was not challenged and that has become final. She has got a further case that she was a necessary party but she was not informed about the case and she was not impleaded as a party and hence the award was passed in violation of the principles of natural justice. 4. According to the counsel for the appellants, Tribunal has no power to implead additional parties and award of the Tribunal has become binding on all employees of the establishment under S.18 of the Industrial Disputes Act, 1947 and therefore, it cannot be set aside and reasoning of the learned Single judge is erroneous. 5. S.18 (3) of the Industrial Disputes Act, 1947 (hereinafter referred to as the act) provides as follows: "(3) A settlement arrived at in the course of conciliation proceedings under this Act (or an arbitration award in a case where a notification has been issued under Sub-sec. (3-A) of 10-A) or (an award (of a Labour Court, Tribunal or National Tribunal), which has become enforceable) shall be. (3-A) of 10-A) or (an award (of a Labour Court, Tribunal or National Tribunal), which has become enforceable) shall be. binding onto) all parties to the industrial dispute; (b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, (arbitrator) (Labour Court, Tribunal or National Tribunal) as the case may be, records the opinion that they were so summoned without proper cause; (c) Where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the disputes relates; (d) where a party referred to in clause, (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute, and all persons who subsequently become employed in that establishment or part". The original parties to an industrial dispute are those parties who are mentioned in the order of reference and none another. There is no specific section in the Act which expressly empowers the Tribunal to implead parties to the proceedings, but such power is necessarily to be implied from S.18(3) (b) of the Act as the award will be binding on all other parties summoned to appear in the proceedings. Clause(b)of S.18(3) when it speaks of "all omer parties summoned to appear in the proceedings" as parties to the dispute necessarily implies that some persons other than the original parties to the dispute can be summoned in order that the award may become enforceable and binding on those parties also. By necessary implication, there is vested in the Industrial Tribunal, a power to add any person whose presence i s necessary and proper for the due and just adjudication of the dispute and make them parties to the proceedings. Therefore, it can be implied that Tribunal has power to summon parties other than parties to a reference to appear in a proceeding before it as parties to the dispute. 6. A necessary or proper party to the dispute referred for adjudication can be summoned at the instance of the parties or suo motu by the Tribunal as held by this Court in C.I. Abraham v. Industrial Tribunal (1958-11 LLJ 725). 6. A necessary or proper party to the dispute referred for adjudication can be summoned at the instance of the parties or suo motu by the Tribunal as held by this Court in C.I. Abraham v. Industrial Tribunal (1958-11 LLJ 725). It is true that power to summon all parties to the dispute which is implied in S.18(3) (b) cannot however be exercised by the Tribunal so as to enlarge materially the scope of the reference itself, because basically the jurisdiction of the Tribunal to deal with an industrial dispute is derived solely from the order of reference passed by the appropriate Government under S.10(1) of the Act. If it appears to the Tribunal that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side of the employer, or on the side of the employee, it may direct that other persons should be joined who would be necessary to represent such interest, as was held by the Supreme Court in Hochtlef Gammon v. Industrial Tribunal, Bhubaneshwar, Orissa and others (1964-11 LLJ 460). It was held in the above decision that if unions specified in the reference do not represent all the employees of the undertaking, it may be open to the Tribunal to add such other unions as it may deem necessary. It is averred by the original petitioner that she was not a member of any unions. In F.A.C.T. Employees Association v.F.A.C.T. Ltd. (1976 KLT 474) it was held by this Court that the Tribunal has inherent power to implead additional parties eventhough members of the union which was represented cannot challenge the award for want of individual notice. The workmen who are not members of the union can be impleaded by the Tribunal under S.18(3)(b). 1. The power of the Tribunal to summon and all other parties is narrow and limited and is confined to cases where summoning of parties is necessary to make the adjudication of the dispute as referred effective and enforceable. The test always is whether the addition of a party necessary to make the adjudication itself effective and enforceable, as held by the Supreme Court in the decision mentioned earlier. The test in other words is would be the non joinder of the party make the adjudication proceedings ineffective and unenforceable? The test always is whether the addition of a party necessary to make the adjudication itself effective and enforceable, as held by the Supreme Court in the decision mentioned earlier. The test in other words is would be the non joinder of the party make the adjudication proceedings ineffective and unenforceable? The implied power of the Tribunal to summon additional parties is confined only to cases where such addition appears to be necessary for making the reference complete and the award effective and enforceable. Such a power cannot be exercised to extend the scope of the reference. 8. In this case, parties in the original petition has earlier approached this Court by filing O. P. Nos. 7272 of 1985 and 7746 of 1987. In pursuance of the directions in the above original petitions petitioner got a favourable order. The present appellants' effort was to make it a nullity without approaching this court but by raising an industrial dispute. The original petitioner's civil rights would be adversely affected by granting the prayers raised in the dispute. In the circumstances of the case it is clear that she was a necessary party to make the award effective. 9. It is true that awards of the Tribunals and Labour Court are binding on all workmen in the establishment irrespective of the fact an individual workman who was not a member of any union was not represented in Court or no notice was issued to him as the industrial dispute is a collective dispute. Class of employees bound by award under S.18 is very much wider than the original parties to the industrial dispute as it will bind all employees in the establishment and management of the establishment on the date of the award and even bind the employees who joined the establishment subsequently. When a general industrial dispute like wage revision, bonus, promotion policy, strike wage, justifiability of lock out etc. are questioned, all employees in the establishment are bound by the award eventhough some of the employees are not members of the union who are parties to the dispute and individual workman cannot question the award. But when an individual dispute is referred for adjudication as an individual dispute merely because it is espoused by a union, it is imperative that affected parties should be heard to make it binding over the other party. But when an individual dispute is referred for adjudication as an individual dispute merely because it is espoused by a union, it is imperative that affected parties should be heard to make it binding over the other party. When interse seniority between two persons is referred for adjudication, Tribunal cannot pass an award after hearing only one party or union representing one party alone without giving an opportunity to the other side to substantiate the opposite contentions. Such an award obtained behind back of the other party cannot be enforced against his disadvantage. In this case issue referred for adjudication in an industrial dispute was the subject matter of an earlier original petition. Therfore, to get the award effective, petitioner i n the original petition who is directly and substantially interested in the dispute is a necessary party and she should have been impleaded as an additional party. Since, the original petitioner was a necessary party and her civil rights are affected and the writ petition filed by her were also brought to the notice of the Tribunal, the Tribunal should have impleaded her suoiriotu. In any event the appellants cannot be granted relief by the Industrial Tribunal behind her back. Therefore, we agree with the learned Single Judge that the award is passed violating the principles of natural justice and therefore, the award is liable to be set aside. 10. It is pointed out that learned Single Judge set aside the award but further course of action is not mentioned. Since, the award is set aside only because of the violation of principles of natural justice, by not issuing notice to and not impleading the original petitioner as a party, it is corollary that Tribunal should reconsider the matter after affording an opportunity to the original petitioner (first respondent in the appeal). Therefore, the individual dispute should he restored to the file of the Industrial Tribunal, Kollam. Notice should be issued to the original parties to the dispute as well as to Smt. S. Chandramathi Amma, original petitioner, and the case should be tried afresh. Therefore, the individual dispute should he restored to the file of the Industrial Tribunal, Kollam. Notice should be issued to the original parties to the dispute as well as to Smt. S. Chandramathi Amma, original petitioner, and the case should be tried afresh. Whether order dt.11.2.1986 passed in pursuance of the directions ;of this Court is binding and all incident matters to the issue contained in the order of reference are to be looked afresh by the Industrial Tribunal, after issuing notice to the concerned parties including the original petitioner and affording all parties an opportunity to file additional statement, if any, and to adduce evidence. Therefore, without expressing any opinion on me merits of the dispute, we direct the Tribunal to dispose of the industrial dispute afresh after hearing all parties as mentioned above. With the above directions, the writ appeal is disposed of.