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2003 DIGILAW 125 (HP)

MANAGEMENT OF M/S. AUTO v. VIJAY KUMAR SHARMA

2003-05-28

LOKESHWAR SINGH PANTA

body2003
JUDGMENT Lokeshwar Singh Panta, J. (Oral) - The petitioner-Company has filed this writ petition through Shri Ishan Mehta, Factory Manager, under Articles 226/227 of the Constitution of India, seeking to quash the award of the Labour Court, dated 1.5.1995, passed in Reference j No. 34 of 1992, whereby and where under, an application filed by respondent No. 1, Workman, under Section 36-A of the Industrial I Disputes Act, 1947 (for short the Act) was allowed. 2. The petitioner-Company is a Public Limited Company incorporated under the Companies Act, 1956. The Company is carrying on its business activities at different places in the country and one of its unit is situated at plots No. 29-30, Sector 2, Industrial Area, Parwanoo, Distt. Solan. The- petitioner-Company employed Vijay Kumar; workman, respondent No. 1, herein, as Operator Trainee vide appointment letter, dated 18.9.1980, a copy thereof to placed on record as Annexure P-5. According to the terms and conditions of the appointment fetter, training period of the workman was initially for a period of one year. The management could extend the training period for three months at a time subject to maximum period of six months as per clause 0.1 of the appointment letter. On completion of period of one year, the work of the workman was not found satisfactory, therefore, his training period was extended by three months w.e.f. 15.9.1981, by letter dated 4.9.1981 (Annexure P-6). According to the petitioner-Company, performance of workman was not found upto mark even after the extended period and his traineeship was accordingly terminated w.e.f. December 15, 1981. 3. . The Workman feeling aggrieved by the termination raised industrial dispute before the State Government. The State Government referred the disputes to the Labour Court for adjudication. The Labour Court vide its award dated 21.1.1985 (Annexure P-3), decided the reference in favour of the workman holding the termination of the workman on 15.12.1981 unjust and illegal and accordingly he was held to be reinstated with effect from the date of his termination, i.e. 15.12.1981 with back wages being paid to him in terms of the appointment letter. It was further held that the petitioner-Company will allow the workman to have all the benefits of his continuous service from the date of his appointment. 4. Feeling aggrieved by and dissatisfied with the award of the Labour Court, the petitioner-Company filed civil writ petition No. 341 of 1985 of this Court. It was further held that the petitioner-Company will allow the workman to have all the benefits of his continuous service from the date of his appointment. 4. Feeling aggrieved by and dissatisfied with the award of the Labour Court, the petitioner-Company filed civil writ petition No. 341 of 1985 of this Court. The Division bench summarily rejected the writ petition. Copy of the judgment of Division Bench is placed on record as Annexure P-4. 5. In compliance of the award of the Labour Court, the petitioner-Company, issued letter dated 18/24.9.1985 to the workman directing him to report for work as Operator Trainee and collect the back wages from 15.5.1981 till the day he joined his duties. The workman joined his duty and received payment of the back wages. The workman thereafter was given regular appointment w.e.f. 17.1.1986, a Operator in grade W-3. The workman filed another application under Section 33-C(2) of the Act before the Labour Court, which was dismissed as not maintainable, Vide order dated 26.3.1990. (Annexure P-10). 6. According to the petitioner-Company, the workman still not felt satisfied despite compliance of the award of the Labour Court and again approached the respondent-State under Section 36-A of the Act1 for making reference to the Labour Court seeking clarification of the award, dated 21.1.1985, (Annexure P-3). The State Government by notification dated 1.6.1992 (Annexure P-2) referred the matter to the Labour Court. 7. In his application under Section 36-A of the Act1, the workman claimed that he was entitled to be promoted in the grade W-4 and then to Grade W-5. The-petitioner-Company in its written statement filed before the Labour Court raised preliminary objection inter alia to the maintainability of the application of the workman under Section 36- A of the Act as there was no doubt or difficulty as to the interpretation of any provision of the original award of the Labour Court and as such reference made by the State Government was without jurisdiction. It was also stated that the workman could not be compared with another employee namely Nater Lai, who was promoted to Grade W-4 on consideration his work and performance and then to grade W-5 and the claim of promotion of the workman could not be considered a subject of reference under Section 36-A of the Act: especially since it was not so directed by the Labour Court, in its award Annexure P-3. The parties went to trial and led their oral and documentary evidence before the Labour Court. The Labour Court allowed the application of workman and granted following relief to him :- "Keeping my findings on the aforesaid issues in view, I hold that the .petitioner Shri Vijay Kumar is entitled to appointment as Operator W-III grade with effect from 15.12.1981, but, he will get the wages of trainee operator only during the period from 15.12.1981 to 6.10.1985. However, w.e.f. 7.10.1985, he will be entitled to appointment as Operator W-IV grade with full pay and allowances. The reference is accordingly answered in favour of the petitioner to the extent mentioned above. As such, the reference stands disposed of. A copy of this award be sent to the Government of Himachal Pradesh, Shimla-2 for its due publication in the HP. Rajpatra in accordance with law. A copy of this award be supplied to each of the parties, free of cost, if applied for. This is consigned to record room after its completion." 8. The petitioner-Company has challenged the award of the Labour Court dated 1.5.1985 (Annexure P-1) in this writ petition inter alia alleging that the application under Section 36-A of the Act, filed by the workman was not maintainable as there being no doubt or difficulty in the interpretation of any of the provisions of the earlier award, Annexure P-3, which has attained finality after the decision of the High Court in Civil Writ Petition No. 341 of 1985. The workman has made out altogether a different case in the application under Section 36-A which was not the claim in the first award and the relief granted by the Labour Court by way of impugned award is without jurisdiction as the jurisdiction of the Labour Court under Section 36-A is confined only to the extent if any difficulty or doubt having arisen as to the interpretation of the provisions of award and in the present case there was no difficulty or doubt about the interpretation of any provision of the award, Annexure P-3, therefore, the Labour Court has exceeded its jurisdiction. 9. I have heard learned Counsel for the parties. Ms. 9. I have heard learned Counsel for the parties. Ms. Devyani Sharma, learned Counsel for the petitioner-Company submits that as the award dated 21.1.1985, Annexure P-3, has been complied with by the petitioner-Company in letter and spirit and pursuant thereto the workman has been given all the financial benefits and was also given regular appointment w.e.f. 7.1.1986 as Operator in Grade W-III, the impugned award is therefore, contrary to the scope of Section 36-A of the Act. According to the learned Counsel, scope of Section 36-A of i the Act is confined to the extent if any difficulty or doubt has arisen in interpretation of earlier award and it does not provide to decide any fresh rights of the parties and the Labour Court has exceeded its jurisdiction in granting excess relief to, the workman which was not subject-matter of the first award. 10. Per contra, Mr. A.K. Gupta, learned Counsel for the workman seeks to support the award of the Labour Court to contend that the Labour Court is the competent authority to grant relief to the workmen under the Act, and this Court in exercise of extraordinary jurisdiction under Articles 226/227 of the Constitution of India, will not be obliged to interfere in the well reasoned award of the Labour Court.- 11. I have carefully considered the respective contentions of the learned Counsel for the parties. In my view, the award passed by the Labour Court impugned in this petition is without jurisdiction and hence unsustainable. 12. Before dealing with the factual situation of the case, it is appropriate to extract the relevant provisions of the Act. Section 36-A of the Act deals with the power to remove difficulties. Sub-section (1) of Section 36-A reads as under:- "If, in the opinion of the appropriate Government, any difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer the question to such Labour Court, Tribunal or National Tribunal as it may think fit." 13. The scope and ambit of Section 36-A of the Act, has been considered and dealt with by the Honble Supreme Court in Central Bank of India Ltd. & Ors. v. Rajagopalan (P.S.) and others, 1963(7) FLR 141 : AIR 1964 Supreme Court 743. The scope and ambit of Section 36-A of the Act, has been considered and dealt with by the Honble Supreme Court in Central Bank of India Ltd. & Ors. v. Rajagopalan (P.S.) and others, 1963(7) FLR 141 : AIR 1964 Supreme Court 743. Their Lordships dealing with the question about existence of a right set up by a workman have held that Section 36-A merely provides for the interpretation of any provision of an award or settlement where any difficulty or doubt arises as to the said interpretation. Generally, this power is invoked when the employer and his employees are not agreed as to the interpretation of any award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Further it was observed that sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such cases that Section 36-A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. 14. In Kirloskar Oil Engines Ltd. Kirkee, Poona v. The Workmen and others, 1962(1) Supp. S.C.R. 491, scope of Section 36-A of the Act was considered by the Honble Supreme Court and it was held that Section 36-A of the Act was intended to empower a Tribunal to clarify the provisions of the award passed by it where a difficulty or doubt arose about their interpretation, and not to review or modify its own order. Any question about the propriety, correctness or validity of any provision of the award would be outside the purview of the enquiry contemplated by that Section. Similar view was taken by the learned Single Judge of Calcutta High Court in Beritannia Engineering Company Ltd. and another v. Basu Mazumdar and others, 1961(2) LLJ 301 and Division Bench of Madhya Pradesh High Court (Indore Bench), in Waterworks Karmachari Sangh, Vjjain v. Public Health and Engineering Department, 1966(1) LLJ 366. 15. The issue in the first award before the Labour Court was "whether the termination of the services of the workman was justifiable in accordance with the law and rules, if not, to what amount and to what relief workman was entitled to from the management". 15. The issue in the first award before the Labour Court was "whether the termination of the services of the workman was justifiable in accordance with the law and rules, if not, to what amount and to what relief workman was entitled to from the management". The Labour Court vide award dated 21.1.1985, mark Annexure P-3, found the termination of the petitioner illegal and directed the petitioner-Company to reinstate him w.e.f. 15.12.1981 as Operator trainee giving him continuous service from the date of his appointment. At the time of termination of the service of petitioner, he. was working as Operator trainee. The award was complied with by the petitioner-Company in letter and spirit. The workman was reinstated as operator trainee and the entire amount of back wages was paid to him. He was given regular appointment with effect from 7.1.1982 as Operator Trainee grade. W-III according to norms fixed by the petitioner-Company. The High Court in the impugned award dated May 1, 1995, Annexure P-1, directed the petitioner-Company to appoint the workman as Operator W-III grade w.e.f. 15.12,1981 and thereafter to appoint the workman as Operator W-IV grade w.e.f. 7.10.1985 with full pay and allowances. The above said reliefs granted by the Labour Court vide impugned award Annexure P-1, were not granted by the Labour Court in the first Award, nor the issue of appointment of the workman as Operator W-III and W-IV was involved therein. Generally, power under Section 36-A of the Act is invoked when the employer and his employees are not agreed as to the interpretation of any award or settlement and the appropriate Government is satisfied that difficulty or doubt has arisen in regard to any provision in the award or settlement. 16. As noticed above, there was no difficulty or doubt in regard to any provision in the first award giving right to the workman to file application under Section 36-A of the Act. The notification dated 1.6.1992 mark Annexure P-2, was issued by the State Government exercising powers under Section 36-A(1) of the Act forwarding the dispute to the Labour Court. The reference reads as under :- "Whether the demand raised by Shri Vijay Kumar that he be granted back wages from 7.10.1985 and other service benefits at par with other workmen placed similar to him in accordance with the award of the Labour Court, Himachal Pradesh, dated 21.1.1985 in case No. 64/82 Sh. The reference reads as under :- "Whether the demand raised by Shri Vijay Kumar that he be granted back wages from 7.10.1985 and other service benefits at par with other workmen placed similar to him in accordance with the award of the Labour Court, Himachal Pradesh, dated 21.1.1985 in case No. 64/82 Sh. Vijay Kumar v. M/s. Auto Ancillary Ltd. Parwanoo, is legal and justified? If yes, to what relief and damages Shri Vijay Kumar is entitled to?” 17. The reference itself was bad in law as there was no such relief as noticed in the above extracted reference granted by the Labour Court to the workman by award dated 21.1.1985, Annexure P-3 passed in Case No. 64/82, which has required any interpretation of the provisions of the award. First award was clear and unambiguous in terms and spirit. In that view of the matter, the Labour Court has no jurisdiction to pass award dated 1.5.1995, Annexure P-1, impugned in this writ petition under Section 36-A of the Act and the notification of the State Government dated 1.6.1992, Annexure P-2, where under reference was made to the Labour Court under Section 36-A (1) of the Act is also bad in law. The impugned award and notification both are unsustainable and hereby quashed. 18. In the result, for the above said reasons, the writ petition is allowed. Award dated 1.5.1995, Annexure P-1 passed by the Presiding officer of Labour. Court and notification of the State Government, dated 1.6.1992, Annexure P-2, both are set aside and quashed. However, parties are left to bear their own costs. Stay order shall stand vacated.