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2015 DIGILAW 1603 (HP)

Himachal Energy Pvt. Ltd. v. State of H. P.

2015-10-30

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. The petitioner has sought writ in the nature of certiorari for quashing and setting aside reference made to the Labour-cum-Industrial Court by the appropriate authority on 1.1.2014. 2. The petition has been filed on the apprehension that looking into the contents of the reference order as framed by the appropriate authority and the manner in which the words are couched therein, the right of the petitioner to question the status of the respondent No.3 as a workman within the meaning of Section 2 (S) of the Industrial Disputes Act, 1947 would be foreclosed. I have heard the learned counsel for the parties and have gone through the records of the case. 3. It is more than settled that whether the person is a workman or not depends upon factual matrix, the ingredients and the incidence of the definition as contained in Section 2 (S) of the Act when satisfied, the person satisfying same would be a workman. Negatively, if someone fails to satisfy one or the other ingredient or incident of the definition, he may not be held to be a workman within the meaning of expression in the Act. 4. To my mind, once the employer disputes the status of its employee to be that of the workman, then essentially the Tribunal would be obliged to decide the status of the person whether he is a workman or not. 5. No doubt, the Tribunal (hereinafter referred to as “Tribunal”) derives its jurisdiction by the order of reference and not on the determination of the jurisdictional fact which it must of necessity decide to acquire jurisdiction. In industrial adjudication, the issues are of two types: (i) those referred by the government for adjudication and set out in the order of reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. This is so held by the Hon'ble Supreme Court in Workmen Vs. Hindustan Lever Ltd (1984) 1 SCC 728 . It is apt to reproduce the following observation: Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. This is so held by the Hon'ble Supreme Court in Workmen Vs. Hindustan Lever Ltd (1984) 1 SCC 728 . It is apt to reproduce the following observation: Ordinarily, the Tribunal after ascertaining on what issue the parties are at variance raises issues to focus attention on points in dispute. In industrial adjudication , issues are of two types: (i) those referred by the Government for adjudication and set out in the order for reference and (ii) incidental issues which are sometimes the issues of law or issues of mixed law and fact. The Tribunal may as well frame preliminary issues if the point on which the parties are at variance, as reflected in the preliminary issue, would go to the root of the matter. 6. It is evident from the aforesaid exposition of law that not only the issues are required to be framed on the basis of reference made, but issues arising out of the pleadings of the parties are also required to be framed by the Labour Court. 7. Having said so, the apprehension of the petitioner appears to be ill-founded. However, in order to safeguard and protect the interest of petitioner as also to ensure that no prejudice is caused to it, it is hereby clarified that in the event of petitioner's raising a plea that respondent No.3 is not a workman under Section 2 (S) of the Industrial Disputes Act, it shall be obligatory upon the Tribunal to frame an issue to this effect. 8. The petition is disposed of in the aforesaid terms, leaving the parties to bear the costs.