J. K. MEHRA, J. ( 1 ) BY this decision I will be disposing oftwo writ petitions being C. W. P. No. 22/95 and C. W. P. No. 115/95, both challenging different findings of the impugned award. On writ has been filed by the Management challenging findings onthe first and second term of reference and the other filed by theworkmen challenging the findings on the third term of reference. ( 2 ) THIS writ petition, i. e. , C. P. W. No. 115/95 arose out ofthe decision of Industrial Tribunal-II, Delhi relating to a disptuereferred to the said Tribunal by the appropriate Government foradjudication seeking quashing of the impugned Award dated 17/11/1994 pertaining to terms of reference Nos. 1and 2. The petitioner has also challenged the terms of referencecovered by the order of reference vide notification No. F. 24 (1558)/94-Lab. /29734-39 dated 3/06/1994. The termsof reference in the present case are as under :" (1) Whether the workmen are entitled to increase inwages (a ). Rs. 263 P. M. in terms of the settlementdated 5-3-91 and if so, to what relief are they entitledand what directions are necessary in this respect ? (2) Whether the workmen shown in Annexure A are entitleld to wages for the lockout period w. e. f. 20-3-94and if so, what directions are necessary in this res-pect ? (3) Whether the transfer of S/shri Raghubir Singh, Birbalhans Raj, Sunder Vir, Pyare Lal, Dharam Pal, Mamchand, Kishan Lal, Asha Ram, Sudhir Kumar, Mithailal, Sukhu Ram, Ram Garib, Dhan Singh, Attarsingh, Prabhu and Ram Pher is legal and/or justifiedand if not to what relief are they entitled and whatdirections are necessary in this respect ?" ( 3 ) THE first term of reference relates to a settlement which isalleged to have been reached on 5/03/1991 between themanagement and the workman whereunder increase in wages ofrs. 263 per month was provided for while the second term ofreference pertains to workmen shown in Annexure-A to the orderof reference who are alleged to have been locked out w. e. f. 20thmarch 1994. 263 per month was provided for while the second term ofreference pertains to workmen shown in Annexure-A to the orderof reference who are alleged to have been locked out w. e. f. 20thmarch 1994. ( 4 ) THE contentions of the petitioner management in shortare as under : ( 5 ) THE memoradum of understanding dated 5/03/1991did not amount to a settlement as contemplated under Section2 (b) read with Section 18 of the Industrial Disputes Act read withrule 58 of the Central Rules and for that reason the said documentcannot be enforced as a settlement. Counsel for the management has relied upon inter alia the following judgments : (i) Workmen of Delhi Cloth and General Mills Vs. Management of M/s. Delhi Cloth and General Millsltd. reported as 1970 (2) SCR 886 at 882. 895and 896. (ii) International Airport Authorities, reported as 1991llr 481 (DB Delhi ). (iii) The Management, The Co-operative Store Ltd. Vs. Ved Prakash Bhambri, reported as 1988 (36) DLT185 (Delhi ). (iv) Om Prakash Sikka Vs. Presiding Officer, Labour Courtand Anr. reported as 1983 (46) FLR 172. . ( 6 ) IN the Case of Workmen of M/s. Delhi Cloth and Generalmills v. Management of M/s. Delhi Cloth and General Mills Ltd. ,reported as 1970 SCR (2) 886, the Hon ble Supreme Court hasheld. :" (2) Rule, 28f (4) of the Industrial Disputes (Central)Rules 1957 made under S. 38 of the Industrial Disputesact has full force of law of which judicialnotice can be taken. This rule must be fully com-plied with if the settlement is to have a binding effecton all workmen. " (896a ). ( 7 ) THIS Judgment was followed in Om Prakash Sikka Vs. Presi-ing Officer, (supra) where this Court has also held that compliancewith the Rule 58 (4) was mandatory and same view was also heldin another case of the Management of Cooperative Stores Ltd. vs. Ved Prakash Bhambri reported as (36) 1988 DLT 185 whereit was reiterated that Rule 58 and Form H of Industrial Dispute (Central) Rules 1957 have to be strictly followed before thesettlement could be considered as valid. In this case even thoughthere was no plea still the Court found the Tribunal was right intaking note of the fact that the mandatory requirement of Rule 58of Industrial Disputes (Central) Rules had not been compliedwith and that non-compliance effected the validity of the settlement. In this case even thoughthere was no plea still the Court found the Tribunal was right intaking note of the fact that the mandatory requirement of Rule 58of Industrial Disputes (Central) Rules had not been compliedwith and that non-compliance effected the validity of the settlement. In this case also Court had followed the law laid downby the Hon ble Supreme Court in the case of DCM (supra) whichis to the effect that the plain reading of the Rule and Form showsthat the settlement has to be in compliance with the statutoryprovision and the Hon ble Supreme Court in that case had heldthe settlement to be invalid though it was arrived at in the courseof the conciliation proceedings as the settlement was not enteredinto with the concurrence of conciliation officer and the provisions of Rule 58 (4) had not been complied with. This settlementwas held to be invalid. ( 8 ) ON his attention being drawn to the case of Workmenof M/s. Hindustan Lever Ltd. and Ors. Vs. Managementof M/s. Hindustan Lever Ltd. , reported as 1984 Labour andindustrial Cases 276, Mr. Birbal pointed out that the case ofhindustan Lever was altogether different since the understandingreached by exchange of letters had been consistently followed forthe last 25 years and the Management had got some of thereferences of workers rejected in the light of such understandingsand for that reason the Supreme Court had observed that theplea of estoppel will apply against the management whereas therewas no such situation prevailing in the present case. Mr. Rajbirbal also argued in the alternative that assuming the saidmemorandum of understanding to be amounting to a settlementthe document itself nowhere provided for an increase of a sum ofi Rs. 263 per month. He has referred to para 5 quoted hereinbelow of the alleged settlement which provided that even if thebase of 1960=100 of the cost of living index number is changedby Delhi Administration even then the management shall notchange the base and shall pay @ 85 paise per point increase inindex number when payable. A "5. The Delhi Administration has made the base 1960=100 and in future if the Administration stops theabove base, even then the Management will give D. A. on the basis of 1960 = 100 series @ O. 85 paise perpoint. " ( 9 ) IT is not disputed before me that there is no change in thebase of 1960 being 100 so far. " ( 9 ) IT is not disputed before me that there is no change in thebase of 1960 being 100 so far. Since the base has remainedstatic the computation is being carried on in terms thereof andthere was no question of any increase in wages as per the settlement as alleged. It has also not been disputed before me byeither party that any increase in the cost of living index numberover the wages that were being, drawn at the time of the allegedsettlement was being compensated by adequate neutralisationfactor of increase in dearness allowance by computing such amount@ O. 85 Paise per point increase in the cost of living index. Itappears that by computing the amounts of DA based on theaforesaid agreement the total amount of suchdifference in DAcomes to Rs. 263 for a month and that I am told has already beenand is being paid to the workers. The settlement has been carefullyperused and there is no provision made therein for any paymentother than the neutralisation by increase in DA which is to becomputed in terms of clause 5 quoted above. In that view ofthe matter I hold that the workers are entitled to the paymentsmentioned in the settlement in terms of clause 5 quoted herein-above which amount incidently coincides with the amount mentioned in the first term of reference, and is payable by way of DAunder the said settlement. No other amount is payable under thesaid settlement. I further clarify that even though the said settlement may not qualify to be a settlement under the Industrial Disputes (Central) Rules, the management will continue to be boundto honour this as an agreement as it has allready been acted uponby both the parties and its existence was never disputed. Therefore, both parties are estopped from challenging the same at thislate stage. A reference be made, in this connection, to thejudgment of Hon ble Supreme Court in the case of Workmen ofhindustan Levers Ltd. and Ors. v. Management of Hindustanlever Ltd. reported as 1984 Lab. I. C. 274. ( 10 ) THE real controversy has been ranging between the partieson the second term of reference. A reference be made, in this connection, to thejudgment of Hon ble Supreme Court in the case of Workmen ofhindustan Levers Ltd. and Ors. v. Management of Hindustanlever Ltd. reported as 1984 Lab. I. C. 274. ( 10 ) THE real controversy has been ranging between the partieson the second term of reference. ( 11 ) ON the second term of reference the contention of thepetitioner is that the appropriate Government by framing theterms of reference in the present form has resorted to adjudication and in fact has tried to prevent an investigation as to whetherit was a case of lock out or strike. This the appropriate Government could not do. ( 12 ) ACCORDING to Mr. Raj Birbal instead of framing theterm of reference to read as to whether the workmen shownin Annexure-A had gone on a strike or whether there wasa lock out by the Management, if so, whether the act of the workmen or the management as the case may be was justified and towhat relief, if any, the workmen are entitled. " In support he hascited the order of the Hon ble Supreme Court dated 14/01/1991 in Petition for Special Leave to Appeal (Civil) No. 17068/90wherein the Hon ble Supreme Court had directed the Delhi Administration under such circumstances to refer the dispute foradudication and had stated that ". . . . the Delhi Administrationshould refer for adjudication as required under Section 10 (1) (D)read with Section 12 (5) of the Act, the dispute as to whetherthere was lock-out and in case it was so, it was legal and justified" for adjudication. ( 13 ) ACCORDING to Mr. Raj Birbal there was clearly a disputeon the question as to whether there is any lock out or whether theworkmen had resorted to strike. From the correspondence andthe award it does appear that all started as a strike. I have beentaken through the record of the Conciliation Office where plentyof correspondence is available on the labour office record showing that the management right from the very beginning had beenalleging that the workmen had resorted to unjustified strike. Infact he drew my attention to the relevant page where the draftterms of reference were being prepared in the draft failure reportdated 31/05/1994 wherein the term of reference originallydrafted reads "whether the workmen shown in Annexure-A areentitle to Wages for the non-employment. . . . Infact he drew my attention to the relevant page where the draftterms of reference were being prepared in the draft failure reportdated 31/05/1994 wherein the term of reference originallydrafted reads "whether the workmen shown in Annexure-A areentitle to Wages for the non-employment. . . . ", the words non-employment have been deleted and substituted by t ehword lockout. Even if the appropriate Government had retained the expression as it was originally drafted, it was open to the Tribunalto adjudicate as to whether this non-employment had resultedfrom strike or lock out and whether such strike/lock out waslegal and justified. But by such amendment as has been carriedout in the office of the Labour Commissioner which could havebeen on the advise of somebody, the entire context has beenchanged and in fact, it has narrowed down the scope of the references drastically. The administration has proceeded to do what- only the adjudicator could do and that too, after hearing boththe parties and recording evidence. Another peculiar fact whichhas been alleged in this case is the political interference allegedby the management in favour of the workmen as a consequencewhereof the 2nd term of reference was framed. The final conciliation proceedings appear to have been held at the residence of thelabour Minister for National Capital Territory of Delhi. It is,however, not possible for me to conclude either way in this con-nection. But I agree with Mr. Birbal that the term of referencehas been framed in a manner which pre-judges the main issue,i. e. , whether there was a strike or a lock out and whether the samewas legal and justified and refers only a narrow question of theentitlement of wages for the lock out period w. e. f. 20/03/1994. In the face of such correspondence available on the recordof the labour office such a term of reference could not have beenframed and in doing 60 the appropriate Government hasreally done what is was not competent to do i. e. ,to adjudicate upon the question as to whether there was astrike or a lock out and whether it was legal and/orjustified. This matter stands concluded by a Full Bench judgmentof this Court, which is binding on the appropriate Government,in the case of I. T. D. C. reported in 1982 (6) LIC 1309. (1328 and1329 ). This matter stands concluded by a Full Bench judgmentof this Court, which is binding on the appropriate Government,in the case of I. T. D. C. reported in 1982 (6) LIC 1309. (1328 and1329 ). This Full Bench judgment of this Court has been followedby Full Bench of Himachal Pradesh High Court in the case ofvillage Papers, reported as 1993 (1) LLJ 480. . In the case ofltdc, and the real dispute between the parties was whetherthere was a lock out or a closure in the establishment and thegovernment referred the dispute by assuming that there was a lockout, the Full Bench of this court held that such order of referencewas liable to be interfered with as the Labour Court could -nottravel beyond the term of reference and decide the question asto whether there was a lock out. The Full Bench observed that :"it is settled law that the jurisdiction of the Labour Courtindustrial Tribunal in industrial disputes is limited tothe points specifically referred for its adjudicationand the matter incidental thereto and it is not permissible to go beyond the terms of the reference. Anindustrial Adjudicator constituted under the Act isnot vested with any inherent power of jurisdiction. It exercises such jurisdiction and power only uponand under order of reference limited to its term. Itcannot travel beyond the term of reference exceptfor ancillary matters. Making of an older of reference is undoubtedly an administrative function, buteven that is amenable to judicial review in the proceedingsunder Article 226 under certain facts andcircumstances. An order of reference is open tojudicial review if it is shown that the. appropriategovernment has not applied its mind to the materialbefore it or has not taken into consideration certainvital facts which it ought to have taken into consideration. The whole of the correspondencebetween the management and the Labour Commissioner, the Union for the workmen and the Labourcommissioner and the notices displayed by themanagement (the substance of which has been reproducedabove) were before the Secretary (Labour,delhi Administration when it passed the order ofreference dated 27/04/1981. We are of theview that the existence of lock-out itself being thereal dispute between the management and its workmen,the term of reference proceeds on the assumptionthat there was lock-out with effect from 1/01/1981. We are of theview that the existence of lock-out itself being thereal dispute between the management and its workmen,the term of reference proceeds on the assumptionthat there was lock-out with effect from 1/01/1981. " ( 14 ) IN the present case from the term of reference it is clearthat the issue of "whether it was a lock out or strike" had notbeen referred for adjudication even though there were letterson the record of the Labour Commissioner written in the monthof March and May to the effect that workers were not reportingfor work. I have no doubt in my mind that the appropriategovernment had not referred the real dispute in the absencewhereof there could be no award on the question, "whetherit was a case of strike or a lock out ?" The appropriate Governmentclearly failed to exercise its jurisdiction properly ML. proceedingto frame the second term of reference in the manner ithas done. ( 15 ) IN response to the argument as to why the Managementdid not come to this Court immediately on the reference beingmade to have the omission rectified, Mr. Raj Birbal drew myattention to law laid down in the case of D. P. Maheshwari Vs. Delhi Administration reported as 1983 (4) SCC 293 and whichhas been followed by this Court in Taj Services Ltd. Vs. Delhiadministration, reported as 1989 (58) FLR 911 (Delhi ). Mr. Vohra has contended that the Management should havecome to this Court at the earliest opportunity and before waitingfor the entire proceeding to be over the question as to whetherthe reference could be challenged at the very outset by climinga preliminary issue is no longer in doubt in view of the decisionin the same Bench of the hon ble Supreme Court, whichhave delivered the judgment in the case of D. P. Maheshwari (supra) while dealing with the case of Hindustan Livers which is reported in the following year as 1984 Labour and Industrialcases 276 (298 ). The subsequent decision of the Hon ble Supreme Court wherein the said case of Hindustan Levers in paragraph 25 the Hon ble Supreme Court had observed as under :"in industrial adjudication, issues are of two tyeps : (i) those referred by the Government for adjudicationand set out in the order of reference and (ii) incidentalissues which are sometimes the issues of lawor issues of mixed law and fact. The Tribunal mayas well frame preliminary issues if the print onwhich the parties are at variance, as reflected in thepreliminary issue, would go to the root of the matter. " ( 16 ) THE matter has been set at rest in a recent judgment ofthe Hon ble Supreme Court in the case of National Council forcement and Building Materials v. State of Haryana and Ors, Civilappeal No. 3519196 arising out of Special Leave Petition (C) No. 27302195 decidedon 15/02/1996 wherein the position of law as laiddowl in the case of D. P. Maheshwari has been reaffirmed, andrestored. Since there was no reference there could also be nopleading and consequently no issue or finding whether therewas astrike or lock out and whether strike or the lock out isillegal and unjustified. The position that wages or any partthereof for strike or lock out period can be granted only if thereis a finding that the strike or lock out is illegal and unjustifiedis also not disputed. A reference may be made to the following judgments which reflect the consistent view of the Hon blesupreme Court: (i) India Marine Service (Private) Ltd. Vs. Their Workman,reported as 1963 (1) LLJ 122 (SC ). (ii) Northern Dooars Tea Co. Ltd. v. Workmen ofdem Dima Tea Estate, reported as 1964 (1) LLJ436 (SC): (iii) Management M/s. Pradip Lamp Work s case, reportedas 1970 (2) SCR 880 (SC ). (iv) The Statesman Ltd. Vs. Their Workmen, reportedas 1976 (1) LLJ 484 (SC ). ( 17 ) MR. Birbal in the light of the aforesaid cases decided bythe Hon ble. Supreme Court has agreed that in. those cases thehon ble Supreme Court awarded only 50 per cent of the wages. He in particular referred to the case of The Statesman Ltd. where the facts were somewhat similar to the present case thatis what started as a strike resulted in a lock out where themanagement did not allow the workers to resume work evenafter they expressed their desire to return to work. Even thoughthere, was nothing wrong in the term of reference in that casethe Hon ble Supreme Court awarded 50 per cent of the wages. Similarly in the case of India Marine Services (. P) Ltd. 50 per centof the. wages was awarded in the present case. I am informedthat in faot workersare ctirrfn. tlv bem?"paid their waw exceptfor A short period i. e. . Tnr. el995. Similarly in the case of India Marine Services (. P) Ltd. 50 per centof the. wages was awarded in the present case. I am informedthat in faot workersare ctirrfn. tlv bem?"paid their waw exceptfor A short period i. e. . Tnr. el995. to 4th August. 1995. ( 18 ) FROM the detailed arguments advanced by both partiesit is difficult to absolve workmen of entire blame for the non-employment. ( 19 ) I have already held hereinabove that the appropriategovernment had failed to exercise its jurisdiction in not referringthe real dispute for adjudication and to that extent there clearlyappeared to be non-application of mind. I had also sent forthe record of the Appropriate Government and found that inthe original record the issue which was sought to be referred theterm of reference originally proposed mentioned "non-employment" which was deleted and the term "lock-out" was written. The term "non-employment" would have had much wider scopeand would have enabled the Tribunal to exercise jurisdiction toadjudicate upon the question as to whether non-employment wasthe result of strike or a lock out and whether such strike or Jockout was legal and/or justified. The appropriate governmentclearly exceeded its jurisdiction in adjudicating upon the causeof such a non-employment being the result of lock out and thereby confining the term of reference only to wages for lock outperiod. ( 20 ) THE contentions of the management have been rebuttedby Mr. Vohra who alleges that the judgments of Shambhu Nathgoel v. Bank of Baroda reported as 1978 (1) LLJ 488 andavon. Services case reported as 1979 (1) LLJ I as also BombayUnion of Journalists case reported as 1964 (1) LLJ 351are not exactly applicable and he states that in any event appropriate government cannot be precluded from expressing itsprima facie view. The only reference made in opposition toother cases cited by Mr. Birbal is that those are not relevantin view of the fact that the management had accepted settlementwhich had been acted upon. The thrust of his argument hasmainly been that the management was represented before thelabour authorities and did not place its case before the saidauthorities. ( 21 ) MR. Vohra has gone to the extent of contending thatsince the management had not properly presented its casebefare the appropriate Government, it by its own conductis now estopped from raising the plea that the real dispute hasi not been referred. I am unable to agree with Mr. ( 21 ) MR. Vohra has gone to the extent of contending thatsince the management had not properly presented its casebefare the appropriate Government, it by its own conductis now estopped from raising the plea that the real dispute hasi not been referred. I am unable to agree with Mr. Vohra asthere can be no estoppel against law. He has also pointed outthat Labour Inspector had visaed the establishment of themanagement and submitted his report wherefrom, inspite ofthe management s letter, it becomes clear that it was a caseof a lock out. Mr. Vohra has contended that High Court isnot sitting in appeal over the decision of the appropriate Government. No doubt he is right that this Court is not sitting inappeal over the decisions of the appropriate Government, butif the appropriate Government has failed to exercise its jurisdiction which was vested in it, or has exercised jurisdiction, whichis not vested in it, this Court has jurisdiction to examine thatquestion and to pass appropriate orders. ( 22 ) MR. Vohra has next contended that no prejudice hasresulted to the management as the Industrial Tribunal had framedan issue and both the parties had led their respective evidenceto show whether it was a case of lock out or strike and afterlooking into the evidence the Tribunal came to the finding infavour of the workmen and against the management and itheld that the management did declare a lock out after theworkmen had gone on strive. According to Mr. Vohra in thelight of this itself the judgment of Full Bench in the case ofi. T. D. C. reported as 1982 LIC 1309 is not applicable. Anotherreason why according to Mr. Vohra the judgment of Fullbench cannot be applied is because it had failed to considerthe effect of judgment of Hon ble Supreme Court in the case ofc. P. Sarthy Vs. State of Madras, reported as AIR 1953 SC 58 . However, Mr. Vohra has not dealt with subsequent pronouncementof the Hon ble Supreme Court referred to hereinabovewherein their Lordships have clearly laid down that appropriategovernment has no jurisdiction to adjudicate or decide anyissue. There the appropriate Government had come to a findingthat the person before them was not covered by the definitionof the term "workman". According to Hon ble Supreme Court. this amounted to adjudication which the appropriate Governmentcould not do and they struck down the decision of the appropriategovernment and ordered a reference. There the appropriate Government had come to a findingthat the person before them was not covered by the definitionof the term "workman". According to Hon ble Supreme Court. this amounted to adjudication which the appropriate Governmentcould not do and they struck down the decision of the appropriategovernment and ordered a reference. Mr. Vohra has not advert-ed to distinguish this authority. His other contention is that thepetitioner had ample opportunity to go to the appropriategovernment and have a corrigendum issued to get the term ofreference corrected. Mr. Vohra contended that in the Fullbench decision of this Court in the case of I. T. D. C. was tenderedon the Court being approached at the stage of a preliminaryissue. Such a tiling could not be done in view of the law laiddown by the Hon ble Supreme Court in the cases of D. P. Maheshwari v. SBI (supra) and C. A. No. 3519196 arisingout of Special Leave Petition (C) No. 2730295 (supra ). Mr. Vohra furthercontended, which in my opinion is without justification ormerit, that it was for the management to prove that the lockout was Justified. I find that there is no term of reference requiringthe determination of this fact. In the absence thereofit was for the party claiming the wages to have proved lack ofwings Wear Workmen Lal Jhanda Union and Anr. justification on the part of the management which would haveenabled the Tribunal to Award the wages after examining themerits or the lack of the claim for wagss for the period of thealleged lock out. ( 23 ) ASSUMING everything to be in favour of workmen, stilldfind that the impugned Award for payment of wages during theperiod of alleged lock out could not be sustained as there is nofinding returned by the Tribunal that the lock out was illegaland unjustified. In the absence of such a finding no wages couldbe awarded. ( 24 ) IN the writ petition filed by the workers the decision ofthe Tribunal on the third term of reference has been challenged. It is not disputed before me that the job is transferrable fromone establishment to the other and all that they have done is topost them to the new factory site. Mr. Vohra contended sincethere is no work available, this transfer is mala ade and couldnot be justified while Mr. It is not disputed before me that the job is transferrable fromone establishment to the other and all that they have done is topost them to the new factory site. Mr. Vohra contended sincethere is no work available, this transfer is mala ade and couldnot be justified while Mr. Birbal has pointed out that the factoryis coming up over there and work is going to be made available. In any event. I have not been able to find anything wrong withthe impugned award en this term of reference. The employerhas transferred in exercise of its powers under the contract of employmentto transfer in Delhi, these workers from one establishmentto the other. Even though the employer is unable to furnishadequate work to his employees, unless and until the term ofemployment provide for such contingency the employer has topay wages and is liable to pay wages so long as the employeesare reporting for work and are available for the job. The managementin the course of the hearing was directed to make certainadhoc deposits towards payment of wages for the period slibsequentto the award and they have made two deposits. It isdirected that cut of the amount deposited the workers be paidtheir wages and if there is any balance left after payment ofthe wages the parties may move the Court for appropriatedirections regarding the disposal of such amount. I find no merit in the second writ petition which is hereby dismissed. Thewrit petition No. 115195 is hereby allowed in terms set outhereinabove. Rule nisi is made absolute in the above terms andthe Award of the Tribunal on the 1st term is modified as aboveand on the 2nd term of reference is hereby set aside. In thecircumstances of the case the parties are left to bear their owncosts. ( 25 ) A copy of this judgment be placed on the file of C. W. P. No. 22195. A. T. G.