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2003 DIGILAW 106 (RAJ)

Mahaveer Conductor v. Nand Kishore

2003-01-24

B.S.CHAUHAN

body2003
JUDGMENT 1. - Learned counsel Mr. Vyas appears for all the respondents. Thus, the service is complete. With the consent of the learned counsel for the parties, the petition is disposed of finally.This writ petition has been filed against the award of the Labour Court dated 12.1.1999 by which the claim of the respondents-workmen has been allowed and in lieu of reinstatement, a compensation to the tune of Rs. 14,000/- to Nand Kishore, 5000/- to Kishan Lal, 9,000/- to Bikha Ram, and Rs. 5,500/- to Arjun Singh has been awarded. 2. The facts and circumstances giving rise to this case are that on application of the respondents-workmen, the appropriate Government Vide order dated 2.2.1993 made a reference to the Labour Court as to whether the termination of the respondents-workmen from service was in accordance with law and if not to what relief they were entitled for. In pursuance thereof, the workmen filed the claim petitions submitting that they had worked for a long period but their services had been terminated without complying with the provisions of Section 25-F of the Industrial Disputes Act, 1947 (hereinafter called as the Act, 1947). The reply was filed by the Management-the present petitioner contending that the establishment itself stood closed on 17.7.1991, therefore, the question of their termination of services was under compulsion. More so, they had not worked for 240 days in a calendar year counting backwards from the date of termination. On hearing the learned counsel for the parties and appreciating the evidence, the learned Labour Court recorded the findings of fact that the workmen had worked for more than 240 days in a calendar year counting backwards from the date of termination, but as the Establishment was closed, the workmen could not have continued. However, it in the facts and circumstances of the case, the Labour Court came to the conclusion that even if the establishment stood closed, the services of the employees could have been terminated in accordance with law and they were entitled at least for notice and some compensation and thus awarded the compensation as stated herein above. Hence this petition. 3. Hence this petition. 3. Shri Shankhla, learned counsel for the petitioner has vehemently submitted that as the reference itself was made without mentioning a date of termination how the award impugned could be held valid and there is no sanctity of an award on a reference which itself is bad.There can be no dispute to the settled legal proposition that any order passed by any Court without jurisdiction is nullity and such order remains inexecutable and unenforceable. 4. Jurisdiction to deal with a case is a creation of statute and it cannot be created by acquiescence of the party or by the order of the Court, (Vide the Constitution Bench judgment of the Hon'ble Supreme Court in the United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230 ). In Kesar Singh & ors. v. Sadhu, (1996) 7 SCC 711 , the Apex Court held that a decree without jurisdiction is a nullity and when the matter goes to the root of the jurisdiction, It can be raised even in execution proceedings. The finding of a Court or a Tribunal becomes irrelevant and unenforceable/inexecuteable once the forum is found to have no jurisdiction. (Vide State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664 . 5. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature.` Conferring a Court or Authority with jurisdiction, is a legislative function. In Union of India v. Devki Nandan Aggarwal, AIR 1992 SC 96 , the Hon'ble Apex Court observed that "the Court cannot usurp legislative functions. The Court cannot re-write, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts." 6. In Karnal Improvement Trust v. Prakash Wanti & Anr., (1995) 5 SCC 159 , the Hon'ble Supreme Court has observed that acquiescence of parties cannot confer jurisdiction upon a court/authority and an erroneous interpretation equally should not be permitted to perpetuate and perpetuate defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., AIR 1996 SC 1373 . 7. In Sardar Hasan Siddiqui v. State Transport Appellate Tribunal, AIR 1986 All 132 . A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., AIR 1996 SC 1373 . 7. In Sardar Hasan Siddiqui v. State Transport Appellate Tribunal, AIR 1986 All 132 . The Allahabad High Court observed that a Court or a Tribunal cannot derive jurisdiction apart from the Statute. "No amount of acquiescence, waiver or the like can confer jurisdiction which a Tribunal is lacking. The doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity." 8. In A.R. Antuley v. R.S. Navak, (1988) 2 SCC 602 , the Hon'ble Supreme Court referred to and relied upon the judgment of the House of Lords in Attorney General v. Herman Jamas Sillern, (1864) 10 HLC 704 , wherein it had been reiterated as under : "A decision touching the jurisdiction.....has to be not only consistent with the fundamental rights guaranteed by the Constitution, the same cannot even be inconsistent with substantive provisions of the statutory law..... Creation of a right to an appeal is an act which requires legislative authority, neither an inferior Court nor the Superior Court nor both combined, can create such a right, it being one of the limitation and extension of jurisdiction." 9. In the Bombay Gas Company Ltd. v. Gopal Bhiva & ors., AIR 1964 SC 752 , the Hon'ble Supreme Court examined the scope of jurisdiction and powers of the Industrial Tribunal/Labour Court and held that the Labour Court is a Court of limited jurisdiction and it can deal with only the dispute referred to it and the matters incidental thereto, but cannot travel beyond the terms of the reference. 10. In Hochtief Gammon v. Industrial Tribunal, AIR 1964 SC 1746 , while dealing with the similar issue, the Hon'ble Supreme Court held as under : "The Industrial Tribunal is a Tribunal or limited jurisdiction. Its jurisdiction is to try an industrial dispute referred to it for its adjudication by the Appropriate Government by an order of reference passed under Section 10. It is not open to the tribunal to travel materially beyond the terms of the reference, for it is well settled that the term of reference determines the scope of its power and jurisdiction from case to case..... It is not open to the tribunal to travel materially beyond the terms of the reference, for it is well settled that the term of reference determines the scope of its power and jurisdiction from case to case..... It may, while dealing with the said point, deal with the matters incidental thereto." In Pottery Mazdoor Panchayat v. The Perfect Pottery Co. Ltd. & Anr., AIR 1979 SC 1356 , the Hon'ble Supreme Court held that the Industrial Tribunal has no jurisdiction to go beyond the term of reference and the inquire into the question which is not involved in the reference. If the Tribunal travels beyond the terms of the reference, the award is nullity and would not confer any right upon the party. 11. In Madanpal Singh v. State of U.P. & ors., AIR 2000 SC 537 , the Hon'ble Supreme Court examined the case wherein, while making the reference, name of the workman had wrongly been mentioned. The parties led the evidence knowing who was the real workman, but the Labour Court made the award of "no dispute" recording its conclusion that there was no workman-employee served the Establishment by the name the reference had been made and it was not possible for the Labour Court to proceed on the basis of the evidence led by the parties or treat the reference to have been made in favour of the correct person. The Hon'ble Supreme Court held that the award was justified as the Labour Court, being a Court of limited jurisdiction and having no power to go beyond the terms of the reference, could not deal with the matter. However, in such an eventuality, either of the parties could make the application before the Appropriate Government to amend the reference and in the peculiar facts and circumstances of the case, the Labour Court itself could also ask the Appropriate Government to make an amendment. In the said case, on being approached by the workman, the Appropriate Government amended the reference after the award had been made by the Labour Court. The Hon'ble Supreme Court directed the Labour Court to decide the matter afresh. 12. Thus, in view of the above, I reach the inescapable conclusion that the Labour Court has no competence to correct/modify/amend/alter the terms of the reference or mention the date of termination etc. The Hon'ble Supreme Court directed the Labour Court to decide the matter afresh. 12. Thus, in view of the above, I reach the inescapable conclusion that the Labour Court has no competence to correct/modify/amend/alter the terms of the reference or mention the date of termination etc. or proceed with the reference and accepting the date of termination as suggested by the workman and in case it does so, the award becomes nullity, being without jurisdiction, based on the bad reference. 13. Be that as it may, as the amount of award given to Kishan Lal respondent No. 3 and Arjun Singh-respondent No. 4 is of petty amount, it does not require any interference so far as these two workmen are concerned. 14. However, so far as the award in favour of Nand Kishore respondent No. 1 and Bhikha Ram respondent No. 2 is concerned, the same is set aside with liberty to the said workmen to approach the appropriate Government to make a proper/correct reference, and if such a reference is made, the learned Labour Court is requested to decide the reference expeditiously in accordance with law. 15. With the aforesaid observations, the petition stands disposed of finally. There shall be no order as to costs.Award in favour of K and A being pretty not interfered with - Ward of N and B set aside with Liberty to seek fresh reference. *******