Arafat Petrochemicals Pvt. Ltd. v. J. K. Staff Association
2019-08-08
PUSHPENDRA SINGH BHATI
body2019
DigiLaw.ai
JUDGMENT : Pushpendra Singh Bhati, J. 1. Since in this bunch of writ petitions common question of law and fact has been raised, therefore, they are heard together and decided by this common order. As a leading case, the facts of SBCWP No. 12663 of 2018 are taken note of for the convenience. 2. The petitioner has filed the writ petition praying for the following reliefs: "It is, therefore, humbly prayed that the record of the learned Trib. may kindly be called and examined and petition filed by the Petitioner Company may kindly be allowed and the impugned order dated 28.2.2018 may kindly be quashed and set aside and if any further proceeding in pursuance of the said order is taken same may kindly be also quashed and set aside. Any other Order/direction which is in the interest of the Petitioner and the Hon'ble High Court may think fit in the facts and circumstances of the case, may kindly also be passed." 3. The petitioner-M/s. Arafat Petrochemicals Pvt. Ltd. being a registered company has filed these writ petitions challenging the order of the learned Labour Court impleading the petitioner as a party to the ongoing industrial dispute. 4. Counsel for the petitioner, Mr. A.K. Bhandari, Senior Advocate, assisted by Mr. Anurag Agarwal, Advocate, submits that the petitioner cannot be impleaded as a party in the ongoing industrial dispute before the Labour Court as the petitioner was no where in the picture when the reference in question was made by the State Government on 30.05.1994. Senior Counsel for the petitioner has drawn attention of this Court to the terms of the reference, which reads as follows: ^^D;k v/;{k@egkea=h] tsŒdsŒ LVkQ ,lksfl;s'ku dksVk }kjk ÁLrqr ekax i= fnukad 20-07-1992 ftldh Áfr layXu gSA mBkbZ xbZ ekaxs mfpr vkSj oS/k gS \ ;fn gka rks laLFkku esa dk;Zjr DydlZ ,oa lqijokbZtjh dSMj ds Jfed ÁcU/kd tsŒdsŒ Vk;j dkMZ ,ŒVhŒlhŒ xzqi dksVk ls D;k jkgr ÁkIr djus ds vf/kdkjh gS\** 5. Counsel for the petitioner submits that terms of reference makes it categorically clear that the rights were being agitated only against J.K. Tyre Cord (ATC Group), Kota. Counsel for the petitioner further drew the attention of this Court to the amendment made in the reference on 25.08.1995 whereby terminology of Sahayak Adhikari, Adhikari Senior Adhikari Shreni Ke Karmchari was inducted in between the Shramik and the Prabandhak.
Counsel for the petitioner further drew the attention of this Court to the amendment made in the reference on 25.08.1995 whereby terminology of Sahayak Adhikari, Adhikari Senior Adhikari Shreni Ke Karmchari was inducted in between the Shramik and the Prabandhak. Counsel for the petitioner to fortify his submissions has taken this Court to the tripartite agreement between the union - M/s. J.K. Synthetics Ltd. and M/s. Arafat Petrochemicals Pvt. Ltd. - petitioner whereby petitioner has been absolved of its liability against the worker similarly situated as the respondent in question. Counsel for the petitioner has drawn attention of this Court to the definition of 'cut of dates' in agreement, which reads as follows: "Cut-Off Dates - The parties agree that the cutoff dates for computation and calculation of the dues and compensation payable to employees of PSG groups will be 11th September, 1997 and to the employees of ATC will be 31st July, 1997. These cut-off dates have been arrived at an amicable understanding and to ensure that henceforth there shall be no dispute on these cut-off dates." 6. Counsel for the petitioner has also drawn attention of this Court to the definition of labour liabilities in agreement, which also reads as follows: "Labour Liabilities" shall mean and include all amounts due and payable to the workmen and employees by JKSL as on the dates of cessation of operations of the ATC and PSG units as on cut-off dates and also include the retired/superannuated/suspended/ dismissed/ terminated/deceased workmen and obligations arising out of claims suits/plaints etc filed by the workmen with respect to their dues at the Kota Complex including those at the SPRC. The liabilities include and cover all claims and dues, compensation under all heads whatsoever as recorded in Annexure-B." 7. Counsel for the petitioner has also drawn attention of this Court to the terms and conditions of agreement, which read as follows: "1. The Kota Complex excluding SPRC shall be transferred by JKSL as per their agreement. This agreement is not assignable jointly or singly by any party except with the consent of APPL. 2. It is further agreed that while APPL will take over all the liabilities pertaining to the workmen/employees of Sir Padampat Research Center, as determined as per Annexure-B even though the SPRC unit will not be transferred to APPL and will be retained by JKSL. 3.
2. It is further agreed that while APPL will take over all the liabilities pertaining to the workmen/employees of Sir Padampat Research Center, as determined as per Annexure-B even though the SPRC unit will not be transferred to APPL and will be retained by JKSL. 3. The APPL will operate the Kota Complex in the name and style of Arfat Petrochemicals Pvt. Ltd. (APPL) as a new company and new employer. They will issue their appointment letters as per requirement in a phased manner subject to suitability and covering terms of employment etc. The dues of employment under JKSL would be settled as full and final payment as summarized in Annexure-A. 4. The parties to this settlement have prepared a list of all the erstwhile employees of JKSL Kota Complex and have reached agreement as to the dues and claims payable to each of them in full and final settlement of their dues and claims under all heads including the full gratuity, Co's PF contribution and other compensation etc. The details thereof are full set out in Annexure-B to this settlement. These dues including that for gratuity have been computed on the basis of No Work-No Wage for the period after cut-off date till employment under APPL. These dues will be paid in the manner provided in this settlement after approval by BIFR/AAIFR, freeing of the Kota Complex from the Court Receivers, Govt. Licensing Bodies, the Institutional Control etc. The JKSL shall be absolved of their responsibilities in this regard once the above approvals are received and the Kota Complex is transferred and passed on to APPL." 8. Counsel for the petitioner has further taken this Court to the part of agreement dealing with operation of the plants by M/s. Arafat Petrochemicals Pvt. Ltd. - petitioner, particularly Clause-A, which reads as follows: "1. As mentioned herein above on transfer of the Kota Complex to APPL, it will operate as a new unite under the name and style of M/s. Arfat Petrochemicals Pvt. Ltd. It will own, run and operate the Kota Complex under the said name as new company and new employer. 3. The employees who will be absorbed by APPL in a phased manner and are asked to join their duties shall be communicated by APPL as follows: (a) Through a registered AD postal letter to outstation employees not available locally at their last recorded address.
3. The employees who will be absorbed by APPL in a phased manner and are asked to join their duties shall be communicated by APPL as follows: (a) Through a registered AD postal letter to outstation employees not available locally at their last recorded address. (b) to put call notices on the respective notice board to join duties within 15 days from the respective date of notices. (c) A notice for opening shall also be published in the local daily newspaper. (d) Those workmen who fail to report for their duties within the stipulated period of notice shall Ipso facto be deemed to be not interested in taking up the Job. In such events APPL may notify other employees to join duty in their place. (e) The concerned Unions/Association shall also inform the employees so called for joining duties within the stipulated period of the notice. 7. Those workmen who are unable to find a placement in the call notices shall also be paid their dues in accordance with this settlement. 10. The Unions have agreed to cooperate with the management in the steps taken for release of the properties, guest houses, bungalows, bachelor hostel, colony, plants etc. which have been attached by different authorities. 11. The accommodation available in the residential colony will be provided to the new employees based on the nature of their duties, status and working requirement. Hence, they may be allotted/reallocated different accommodation and/or if required be asked to vacate such accommodation in their possession. APPL will be entitled to ask those erstwhile employees having possession of residential accommodation in the colony and do not find jobs in APPL to vacate such accommodation. The unions shall fully cooperate and assist APPL in this regard." 9. Counsel for the petitioner submits that the tripartite agreement also reflects the way of determination of payment of settled due of past services, which reads as follows: "1.
The unions shall fully cooperate and assist APPL in this regard." 9. Counsel for the petitioner submits that the tripartite agreement also reflects the way of determination of payment of settled due of past services, which reads as follows: "1. Whereas on the basis of the discussions held amongst the representative of JKSL, APPL and Workmen Unions of dues of the working/employees shall accrue up to the cut off dates and have been calculated and determined in Annexure-B to this agreement (any arithmetic calculation shall be rectified) and this liability has been agreed upon as full and final settlement of all dues, claims and compensations under all heads of any nature statutory or otherwise including gratuity for the past services and no further claim shall be against JKSL/APPL. The erstwhile employment ceases on the cut-off dates. 3. The issues relating to unpaid cooperative society deductions and dues payable to canteen workers, contract labour, temporary workers, OPF amount, Sukhadia award fund are being settled directly between the Unions and JKSL and these are not covered under "Annexure- A and Annexure-B." 10. Counsel for the petitioner has thus submitted that since the petitioner was a subsequent stakeholder of the assets in question and past liabilities were very well defined in the tripartite agreement made between M/s. J.K. Synthetics Ltd. as well as the petitioner and the union of the workmen, therefore, the current liability arising out of the adjudication of the reference in question cannot be saddled upon the present petitioner. Counsel for the petitioner has referred to the judgment in the case of M/s. Hochief Gammon vs. State of Orissa and Others, AIR 1975 SC 2226 . The relevant Paras 15 and 16 read as follows: "15. We have set out the facts of this case at considerable length and considered the whole question. We think that the Government's order in this case really amounts to an outright refusal to consider relevant matters and the Government also misdirected itself in point of law in wholly omitting to take into account the relevant considerations which as held by the House of Lords is unlawful behavior. It, has failed to realise that in effect the contractor employed labour for the company who was the real paymaster. It had failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant.
It, has failed to realise that in effect the contractor employed labour for the company who was the real paymaster. It had failed to take into account the fact that the workmen wanted the bonus from either the company or the appellant. Naturally the workmen were not interested who paid them as long as they were paid. It would bear repetition to say again that the original mistake arose out of the assumption by the Labour Commissioner that this was a case of an ordinary contract which would apply to other contractors also. He had apparently not seen the contract between the company and the appellant and that mistake was adopted by the State Government and they stuck to it in spite of the application made to them by the appellant after the disposal of the earlier appeal by this Court, giving all relevant facts. It does not appear from the communication of the Government to the appellant that they had applied their mind to any of the considerations set out in the appellant's application. 16. In the circumstances this appeal must be allowed and the Government of Orissa must be directed to reconsider this matter and take a decision in the matter of reference in the light of the relevant facts. There will be no order as to costs." 11. Counsel for the petitioner has also referred to the judgment in the case of Hochief Gammon vs. Industrial Tribunal, AIR 1964 SC 1746 . The relevant Paras 8, 16 and 17 read as follows: "8. Section 10(4) which was also added by the same amending Act provides, inter alia, that the jurisdiction of the Industrial Tribunal would be confined to the points of dispute specified by the order of reference, and adds that the said jurisdiction may take within its sweep matters incidental to the said points. In other words, where certain points of dispute have been referred to the Industrial Tribunal for adjudication, it may, while dealing with the said points, deal with matters incidental thereto, and that means that if, while dealing with such incidental matters, the Tribunal feels that some persons who are not jointed to the reference should be brought before it, it may be able to make an order in that behalf under s. 18(3)(b) as it now stands. 16.
16. That takes us to the question as to whether the appellant is justified in contending that M/s. Hindustan Steel Ltd. is a necessary party to the present proceedings before the Industrial Tribunal, and should, therefore, be added as such. Mr. Chatterji has raised two contentions in support of his plea that M/s. Hindustan Steel Ltd. is a necessary party. The first contention is that if it is ultimately found that the respondent's claim for bonus for the relevant year is well founded, as a result of the contract between the appellant and M/s. Hindustan Steel Ltd. the liability to pay the said bonus would rest with the said concern and not with the appellant. The appellant, according to Mr. Chatterjee, is a firm constituted only for a single venture for undertaking the execution of the work of construction and foundation and civil engineering works at Rourkela: it has been engaged by the said concern of M/s. Hindustan Steel Ltd. as its agent and in that behalf an agreement has been executed between the parties. Mr. Chatterjee referred us to some of the relevant clauses of this agreement in support of his plea that the liability for bonus, if established by the respondents against the appellant, would be not the appellant's but of M/s. Hindustan Steel Ltd. We do not propose to examine the merits of this contention, because we are satisfied that even if Mr. Chatterjee's contention is well-founded by reference to the relevant clauses of the agreement between the parties, that cannot make M/s. Hindustan Steel Ltd. a necessary party within the meaning of s. 18(3)(b). This contention raises an entirely different dispute between the appellant and its alleged principal and such a dispute would be wholly foreign to the industrial dispute which has been referred to the Tribunal for its adjudication. 17. The next contention raised by Mr. Chatterjee is that M/s. Hindustan Steel Ltd. is a necessary party because it is the said concern which is the employer of the respondents and not the appellant. In other words, this contention is that though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of Orissa, it is necessary that the principal, viz.
In other words, this contention is that though in form the appellant engaged the workmen whom the respondent union represents, the appellant was acting as the agent of its principal and for adjudicating upon the industrial dispute referred to the Tribunal by the State of Orissa, it is necessary that the principal, viz. M/s. Hindustan Steel Ltd. ought to be added as a party. In dealing with this argument, it is necessary to bear in mind the fact that the appellant does not dispute the respondent Union's case that the workmen were employed by the appellant. It would have been open to the State Government to ask the Tribunal to consider who was the employer of these workmen and in that case, the terms of reference might have been suitably framed. Where the appropriate Government desires that the question as to who the employer is should be determined, it generally makes a reference in wide enough terms and includes as parties to the reference different persons who are alleged to be the employers. Such a course has not been adopted in the present proceedings, and so, it would not be possible to hold that the question as to who is the employer as between the appellant and M/s. Hindustan Steel Ltd. is a question incidental to the industrial dispute which has been referred under s. 10(1)(d). This dispute is a substantial dispute between the appellant and M/s. Hindustan Steel Ltd. and cannot be regarded as incidental in any sense and so, we think that even this ground is not sufficient to justify the contention that M/s. Hindustan Steel Ltd. is a necessary party which can be added and summoned under the implied powers of the Tribunal under s. 18(3)(b)." 12. Counsel for the petitioner further relied upon the judgment in the case of Maharashtra State Electricity vs. Industrial Tribunal dated 24.2.1964 decided by the Bombay High Court. The relevant Paras 1, 11 and 18 read as follows: "1. An industrial dispute relating to several matters was referred by the Government of Maharashtra to the industrial tribunal for adjudication, under the Industrial Disputes Act. This dispute was between the Poona Electric Supply Company, Ltd. (hereinafter referred to as the company), respondent 2 in this petition, and the workmen of that company. The industrial tribunal, to which this dispute was referred, was presided over by respondent 1 in this petition.
This dispute was between the Poona Electric Supply Company, Ltd. (hereinafter referred to as the company), respondent 2 in this petition, and the workmen of that company. The industrial tribunal, to which this dispute was referred, was presided over by respondent 1 in this petition. During the tendency of the dispute, the company made an application to respondent 1 tribunal requesting the tribunal not to adjudicate upon three of the matters which were pending before the tribunal. By this application, the company drew the attention of the tribunal to an agreement executed between the company and the Maharashtra State Electricity Board (hereinafter referred to as the Board) on June 12, 1963. It was pointed out that by this agreement the company had agreed to sell to the Board the undertaking of the company, upon the terms and conditions mentioned in that agreement. The company had agreed to deliver possession of the company's undertaking to the Board on the date of the revocation of its licence by the Government of Maharashtra. It was the company's case that the Board was not liable to take over the workmen engaged by the company and the Board was to employ such workmen as they thought fit as fresh entrants on fresh terms and condition. Attention was drawn to one of the conditions in the agreement that the company was required to give notices of termination of the employments of its employees and to pay them such dues as they were entitled to under the law. The application stated: "The company is in a process of closing down its work within a short period." 11. After the revocation of the licence, the company gave another notice to the employees on October 15, 1963, stating as follows: "The Government of Maharashtra have now made an order in accordance with powers conferred by sub-section (2) of S. 4 of the Indian Electricity Act, 1910, revoking the licence held by the company known as Poona Electric Licence, 1917, with effect from 16 November, 1963. Accordingly this notice is given to you that the company will not be able to continue your services, and your services with the company will stand terminate as at end of 14 November, 1963. Your services will be retrenched or deemed to be retrenched by the company under the provisions of the Industrial Disputes Act, 1947, with effect from 16 November, 1963. 18.
Your services will be retrenched or deemed to be retrenched by the company under the provisions of the Industrial Disputes Act, 1947, with effect from 16 November, 1963. 18. Sri Dudhia appearing for the workmen, however, argued that even though the Board may not be a successor-in-interest, the Board would be necessary or a proper party to the dispute which was referred to adjudication by the tribunal. He contended that though the services of the employees were terminated by the company, a large number of employees would be required to be absorbed by the Board for the same or similar type of work. Although the Board may not be, in law, a successor-in-interest, the Board will carry on the work of supplying electricity to the city of Poona. The employees, if they are deprived of their legitimate demands, may have to raise a fresh dispute and with a view to avoiding industrial unrest the Board should be made a party to the proceedings, as a necessary or a proper party. He emphasized that sub-section (3) of S. 18 of the Act gives wide powers to the tribunal to summon any party to appear in the proceedings as a party to the dispute. According to his submission, this wide power is given to the tribunal in the interest of industrial harmony and the power of the tribunal in this respect is unfettered. It is pertinent to see the scheme of S. 18 of the Act to appreciate this argument. When once a party has been summoned to appear as a party to the dispute, the consequence is the party as well as the heirs, successors or assigns of that party, if the party is an employer, and all persons who were employed in the establishment on the date of the dispute as well as all persons who subsequently become employed in the establishment, if the party are workmen, are bound by the award or the settlement. If parties, who are not necessary or proper parties, are allowed to be summoned as parties to the dispute, the result will be that the scope of the dispute itself will be enlarged. It could not have been the intention of the legislature that the tribunal would be given the power to enlarge the scope of the dispute so as to make it a dispute between parties, between whom no industrial dispute existed before.
It could not have been the intention of the legislature that the tribunal would be given the power to enlarge the scope of the dispute so as to make it a dispute between parties, between whom no industrial dispute existed before. The power of the tribunal to add parties under S. 18 of the Act is not disputed. What is, however, contended is that power is limited only to adding necessary or proper parties. Sri Khambatta argued and in our view rightly, that S. 18 could not be said to have given the power to the tribunal to change the character of the dispute which existed between the two parties who were originally parties to the dispute, by adding a third party, so that the dispute will not only be between the original parties but between the new party and the workmen. Section 10 of the Act provides for the reference of disputes to boards, courts or tribunals. The appropriate Government can refer an industrial dispute to the tribunal, if it is of opinion that any industrial dispute exists or is apprehended. This would presuppose that the dispute must exist or must have been apprehended at the time when the Government formed the opinion that it should be referred to the tribunal. This power is only of the Government and it could not have been intended that by a subsequent order of the tribunal to add parties to the dispute the scope of the dispute, as it existed at the time of the reference, could be enlarged. The same view has been taken in 1958 (2) LLJ 725 . Sri Khambatta contended that even if order 1, rule 10, of the Civil Procedure Code, was applicable, the Board could not be considered as necessary or a proper party. Any award made in the dispute between the company and its workmen, says Sri Khambatta will not be rendered nugatory. The scheme of the Act is to provide a machinery for settlement of industrial disputes with a view to bringing about industrial peace. If necessary or proper parties are not before the tribunal, that object cannot be achieved, as the award would be rendered nugatory. But even then, the object can only be the settlement of the dispute which was initially before the tribunal and not a dispute between parties unconnected with the dispute.
If necessary or proper parties are not before the tribunal, that object cannot be achieved, as the award would be rendered nugatory. But even then, the object can only be the settlement of the dispute which was initially before the tribunal and not a dispute between parties unconnected with the dispute. The object of giving power to add parties could not have been to enlarge the scope of the dispute and to alter its character. The reasonable interpretation, therefore, of the scope of the powers of the tribunal to add parties under S. 18 would be that only necessary or proper parties can be summoned to appear before the tribunal as parties to the dispute. In P.G. Brookes vs. Industrial Tribunal, 1953 (2) LLJ 1 , Justice Sri Subba Rao, in his judgment, observed as follows (p. 9): "Clause (b) [of Sub-section (3) of S. 18] refers to other parties summoned to appear as parties in the dispute. The other parties can only mean parties other than those mentioned in Clause (a) i.e. the original parties. They must be summoned as parties to the dispute, i.e. as persons who are affected by or interested in the dispute. A party to a dispute is either a necessary or proper party. A person against whom a relief is claimed is a necessary party to a proceeding. A person against whom though no relief is claimed, whose presence is necessary for a complete and final decision of the question involved, is a proper party as distinguished from a necessary party. We should think that Clause (b), though apparently wide in terms, is intended to take in only necessary or proper parties. It could not have been in the contemplation of the legislature to include parties against whom either no relief is claimed or whose presence is not necessary for adjudicating the disputes between the parties....It is intended to enable parties whose presence is necessary or proper for completely disposing of the disputes raised before the tribunal to be impleaded as parties." 13.
Counsel for the petitioner has also shown the precedent law whereby this Court has decided the parameters under which an industrial dispute has to travel as per Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as "the Act of 1947") and the judgments referred in pursuance of such submission are as follows: Maharshi Dayanand Saraswati University, Ajmer vs. Raj Kumar Jain, 2017 (2) WLC (Raj.) UC 431, Atlanta Infrastructure Ltd. vs. State of Rajasthan, 2007 (2) WLC (Raj.) 474, Tata Iron and Steel Company Ltd. vs. State of Jharkhand and Others, 2014 (1) SCC 536 , National Engineering Industries Ltd. vs. State of Rajasthan, 2000 (1) SCC 371 and State Bank of Bikaner and Jaipur vs. Om Prakash Sharma, 2006 (5) SCC 123 . 14. Counsel for the petitioner has submitted that Section 10 of the Act of 1947 contemplates that the industrial dispute shall not travel beyond the reference of the dispute to the Tribunal and particularly emphasis was led on Section 10(4) of the Act of 1947, which reads as follows: "Where in an order referring an industrial dispute to [a Labour Court, Tribunal or National Tribunal] under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, [the Labour Court or the Tribunal or the National Tribunal, as the case may be] shall confine its adjudication to those points and matters incidental thereto." 15. Counsel for the petitioner submits that legislative definition of the Act of 1947 was very much clear as the adjudication had to be confined to the points of the reference and the matters incidentally thereto and not beyond that. Counsel for the petitioner submits that expanding the scope of adjudication to the reference after 27 years would not only be illegal, but would be detrimental to the sense of the justice as it would reopen the whole case belatedly and would contribute to further complications in the rights to be adjudicated before the Labour Court. Counsel for the petitioner has submitted that 85% of the employees have already taken their dues and the petitioner now cannot be saddled with fresh liability arising out of an old reference. Counsel for the petitioner has submitted that the impleadment of the petitioner at this juncture shall be absolutely illegal.
Counsel for the petitioner has submitted that 85% of the employees have already taken their dues and the petitioner now cannot be saddled with fresh liability arising out of an old reference. Counsel for the petitioner has submitted that the impleadment of the petitioner at this juncture shall be absolutely illegal. The impugned order impleading the petitioner as a party is an illegal order, which has been passed on the basis of some past impleadment, which is also not justified and moreover, the creation of liability or impleadment even when the petitioner was admittedly not a necessary or proper party shall be contrary to the law of impleadment of party. 16. On the other hand, counsel for the respondents, Ms. Alankrita Sharma and Mr. Suresh Kashyap, however, have vehemently opposed the submissions made by the counsel for the petitioner. Counsel for the respondents have submitted that a bare perusal of the tripartite agreement itself would indicate that the labour liabilities were to pass on to the present petitioner from M/s. J.K. Staff Association and it cannot be permitted to shirk from its responsibilities even at this stage. Counsel for the respondents have again taken this Court to the definition of 'workmen' in the tripartite agreement and also terms and conditions to which the petitioner has drawn attention of this Court. 17. Counsel for the respondents submitted that the selective proposition from the terms and conditions and other clauses of the tripartite agreement have been read whereas the petitioner is definitely an important aspect of the whole adjudication and cannot exclude themselves from being a party to the adjudication only on the ground that they have subsequently entered into the fray after the reference was made. The thrust of the submissions made by the counsel for the respondents is Section 18 of the Act of 1947. Counsel for the respondents submit that Section 18(3) clearly mentions that the settlement arrived at in the course of the proceedings shall be binding on firstly, the party to the industrial dispute, secondly, to the other party summoned to appear in the proceedings as party to the dispute. Also Section 18(3)(c) has been harped upon by the respondents for marking the definition of "employer" to include his heirs, successors and assigns in respect of the establishment to which the dispute relates.
Also Section 18(3)(c) has been harped upon by the respondents for marking the definition of "employer" to include his heirs, successors and assigns in respect of the establishment to which the dispute relates. Section 18(3) of the Act of 1947 reads as follows: "18(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-section (3A) of section 10A] or [an award [of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on:- (a) 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 dispute 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." 18. Counsel for the respondents thus submit that Section 18 of the Act of 1947 gives ample powers to the learned Labour Court to ensure that anybody who has stepped into shoes of the original employer shall be liable to satisfy the rights claimed by the workmen. Furthermore, any tripartite agreement during the adjudication will not indemnify the successors or assigns. Counsel for the respondents has relied upon the judgments of this Court in the matter of Sikar Central Cooperative Bank Ltd. vs. Labour Court-II, Jaipur and Others, CWP No. 5164/2001, decided on 26.10.2012 in which this Court has followed the precedent law of the Hon'ble Apex Court wherein the entertainment of writs against the interim order was not permissible. The relevant operative portion of the order aforesaid reads as follows: "1. Even though the matter comes up before this Court on an application no.
The relevant operative portion of the order aforesaid reads as follows: "1. Even though the matter comes up before this Court on an application no. 41714 dated 11.09.2012 under Order 1 Rule 10 CPC read with Article 226 of the Constitution of India at the instance of Chandrabhan Singh and one another, having heard the counsel for the applicant, I am of the view that this petition can be disposed of at this stage itself. Counsel for the petitioner Bank has consented to the disposal of the writ petition. 2. The order under challenge is an order dated 30.08.2001, passed by the Labour Court-II, Jaipur in LCR No. 1091/1998. By the impugned order, the Labour Court has held that the objection of the employer, Sikar Central Cooperative Bank Ltd., petitioner herein, in LCR No. 1091/1998 with regard to its jurisdiction to adjudicate a dispute between the employer and the employee would be disposed of at the time of final disposal of the reference application. It is no doubt true that the Labour Court appears to have taken a tentative view of its jurisdiction in the impugned order dated 30.08.2001, but has very categorically stated in paragraph-6 of the order that the employer would be free to agitate the said issue of jurisdiction at the stage of final disposal of the reference application. Counsel for the petitioner-Bank submitted that the liberty granted by the Labour Court for agitating the matter at the time of final disposal of the reference application is of little avail, the Labour Court itself having taken prima facie view of the matter. It is submitted that it is extremely likely that prima facie view taken by the Labour Court would solidify into a final view at the time of final disposal of the reference application. 3. I am however not persuaded by the submission of the counsel for the petitioner-Bank. In my considered view the apprehensions are ill founded as the Labour Court has itself in the impugned order dated 30.08.2001 stated that the employer, the petitioner herein, would be free to agitate the issue of its jurisdiction to entertain the dispute before it in the reference at the time of its final disposal of the reference.
In my considered view the apprehensions are ill founded as the Labour Court has itself in the impugned order dated 30.08.2001 stated that the employer, the petitioner herein, would be free to agitate the issue of its jurisdiction to entertain the dispute before it in the reference at the time of its final disposal of the reference. The Labour Court itself having categorically stated that it would not be bound by its prima facie tentative view, there is no occasion for the apprehension of the counsel for the petitioner-Bank that the said tentative/prima facie view of the Labour Court would solidify into a final view irrespective of the argument advanced before the Labour Court. Even otherwise, the interim order of the Labour Court under the Industrial Dispute Act, 1947 is not amenable to the writ jurisdiction of this Court as held by the Hon'ble Supreme Court in the case of Dena Bank vs. D.V. Kundadia, 2011 (131) FLR 775, wherein the Hon'ble Supreme Court has held that "it is well settled by this Court that no writ should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to challenge it if he is aggrieved." 4. In view of the aforesaid legal position and also in view of the fact that there is no finality to the order dated 30.08.2001, passed by the Labour Court and that the petitioner-Bank has been left free to agitate the question of the Labour Court jurisdiction at the time of final disposal of the reference application, I find no force in the writ petition. 5. The writ petition stands dismissed accordingly. Stay application also dismissed. The application under Order 1 Rule 10 is rendered infructuous in view of the dismissal of the writ petition." 19.
5. The writ petition stands dismissed accordingly. Stay application also dismissed. The application under Order 1 Rule 10 is rendered infructuous in view of the dismissal of the writ petition." 19. Counsel for the respondents has also referred to the judgment of the Hon'ble Apex Court in the matter of Bhagwan Das Chopra vs. United Bank of India and Others, 1987 (supp) SCC 536 particularly relevant Para 7, which reads as follows: "In view of the terms of the agreement of merger and in particular clause 22 thereof the United Bank of India was rightly impleaded as a party to the proceedings before the Tribunal in the place of the Narang Bank of India Ltd. By reason of impleading of the United Bank of India as a party there was no change in the character of the proceedings pending before the Tribunal. The United Bank of India only stepped into the shoes of the Narang Bank of India Ltd. and all proceedings that had gone on till the date on which the United Bank of India was so impleaded were binding on the United Bank of India. The proceedings before the Tribunal could thereafter be continued against the United Bank of India. The United Bank of India could thereafter take part in the further proceedings before the Tribunal in the same capacity in which the Narang Bank of India Ltd. was appearing in the case. It was bound by all proceedings which had taken place till then. It could not go back on the proceedings. Generally speaking an assignee cannot set up a case inconsistent with the one put forward by his assignor and it is only in exceptional cases an assignee could be permitted to raise any new plea and that too only for avoiding multiplicity of the proceedings. In the instant case there was no such exceptional circumstance which entitled the United Bank of India to take up a plea different from the pleas which had already been taken up by the Narang Bank of India Ltd. and there was also no need to permit it to reopen the proceedings which had gone on till then. The High Court has not adverted to any such exceptional circumstance.
The High Court has not adverted to any such exceptional circumstance. The learned Single Judge has not set out any justifiable reason for observing that the principles of natural justice demanded that all those witnesses whose evidence had been recorded earlier could be recalled at the instance of the United Bank of India and opportunity afforded to the United Bank of India to cross-examine them. The learned Single Judge was in error in observing that the United Bank of India was appearing before the Tribunal in its own right and was entitled to protect its own interest. As already observed by us the proceeding pending before the Tribunal on the date of merger could not be considered as a new proceeding instituted against the United Bank of India on its being impleaded. It was the same old proceeding to which the Narang Bank of India Ltd. was a party and the rights of the United Bank of India in the conduct of the proceedings could not be larger than the rights which the Narang Bank of India Ltd. itself possessed. If the Narang Bank of India Ltd. had no right to recall the witnesses who had been examined on behalf of the appellant for cross-examination on the date on which the United Bank of India made such prayer before the Tribunal, the United Bank of India also could not be granted permission to do so. In the absence of any exceptional circumstance which would have entitled in the ordinary course a party to a proceeding to recall a witness whose evidence had already been completed for further cross-examination the United Bank of India could not make such a claim at all. The learned Single Judge who set aside the award in the first instance and the Division Bench which merely affirmed the decision of the learned Single Judge have erred in overlooking the true legal position explained above by us. On the facts and in the circumstances of the case the United Bank of India was not entitled to recall any of the witnesses examined on behalf of the appellant for further cross-examination particularly after both the parties had closed their respective cases before the Tribunal.
On the facts and in the circumstances of the case the United Bank of India was not entitled to recall any of the witnesses examined on behalf of the appellant for further cross-examination particularly after both the parties had closed their respective cases before the Tribunal. The dismissal of the application made by the United Bank of India for recalling the appellant for further cross-examination, in the absence of any exceptional circumstance, could not be considered as a ground for setting aside the award. The principles of natural justice had not, therefore, been violated by the Tribunal in passing the award. We, therefore, set aside the judgment of the Division Bench of the High Court and also of the learned Single Judge. It is, however, mentioned before us that the United Bank of India had some other grounds to urge before the learned Single Judge and the case may be remanded to the learned Single Judge for considering those grounds. We, therefore, remand this case to the learned Single Judge to consider any other relevant ground that may be urged by the United Bank of India and to dispose of the writ petition in accordance with law. This appeal is accordingly allowed. The United Bank of India is directed to pay the costs of the appellant." 20. Counsel for the respondents has further submitted that some of the workmen in the adjudication belongs to the Rajasthan Trade Union Kendra, which is affiliated to Bharatiya Majdoor Sangh, which is not a part of the tripartite agreement. 21. After hearing the counsel for the parties and perusing the record of the case as well as the precedent law cited by the counsel for the parties, this Court is of the opinion that Section 18 of the Act of 1947 in itself carries the clear legislative intention of the power given to the Labour Court to implead any party as an employer, which shall include his heirs, successors and assigns in respect of the establishment to which dispute relates. In the present case, it is not disputed that the establishment in question is the one which relates to the dispute being adjudicated by the reference in question.
In the present case, it is not disputed that the establishment in question is the one which relates to the dispute being adjudicated by the reference in question. The scope of reference is right of the workmen arising out of the establishment in question, which was with the respondent company and now has been passed to the present petitioner in accordance with the tripartite agreement. The tripartite agreement is very wide and is covering almost all the rights of the workmen, but even if, there is any restriction, which is in the tripartite agreement, it cannot be read contrary to the spirit of Section 18(3)(c) of the Act of 1947 and thus, the petitioner being in command over the establishment in question shall have to participate in the adjudication so as to ensure that if it wants to defend against the liability in question, then it may take all necessary steps to defend itself against the liability in question. This Court has also seen the precedent law cited by counsel for the parties in which the Hon'ble Apex Court has only stated that the relevancy of the party in relation to the adjudication in question, being necessary party and/or proper party, has to be seen before the party is impleaded. The precedent law regarding the question whether the interim order passed by the Labour Court can be challenged in writ jurisdiction or not, is very clear that the challenge, if given by the employer, cannot be maintained as he can afford to wait for final adjudication, but challenge can definitely be given by the workman, if he is suffering some prejudice. All the case laws cited have been considered. The impugned order passed by the Labour Court impleading the petitioner as a party is a lawful order as the present petitioner is admittedly in control of the establishment in question and thus, the extent of the liability of the petitioner can be decided only after it is impleaded as a party. 22. In view of the above discussions, the writ petitions do not call for any interference by this Court. Hence, the same are, accordingly, dismissed. However, it is made clear that this order shall not prejudice the case of the petitioner on merits and the liability shall be ascertained by the Labour Court during the adjudication strictly in accordance with law.