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2019 DIGILAW 639 (HP)

Pamwi Tissue Ltd v. State of Himachal Pradesh

2019-05-29

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Being aggrieved and dissatisfied with Award dated 29.8.2012, passed by learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla (HP) in Ref. No. 361 of 2002, whereby petitioner-Company has been directed to pay a lump sum compensation to the tune of Rs.2.00 Lakh to the respondent-workman (hereinafter, 'workman'), petitioner has approached this Court in the instant proceedings filed under Art. 226 of the Constitution of India. 2. Briefly stated the facts as emerge from the record are that appropriate Government made following reference under S.10(1) of the Industrial Disputes Act, 1947 (hereinafter, 'Act') to learned Tribunal below: "Whether the termination of services of Shri Brij Lal S/o Shri Beli Ram w.e.f. 15.9.2001 by the General Manager and Vice President, M/s Pamwi Tissues Ltd., Village Jharmajri, P.O Barotiwala, district Solan, H.P on completion of more than 240 days of continuous service, without complying with the provisions of section 25-N, 25-G and 25-H of the Industrial Disputes Act, 1947 is proper and justified? If not, what relief of service benefits including seniority and back wages the above workman is entitled to? " 3. The workman, in his statement of claim alleged that he was appointed as a Helper by the petitioner on 8.10.1983 and his services were subsequently retrenched on 15.9.2001 in violation of various provisions of the Act ibid. He alleged that since he had completed 240 days in the calendar year before his retrenchment, notice under 25N of the Act ought to have been issued, but in his case, neither notice was issued nor he was paid wages in lieu of termination of his services, as such, his termination being in violation of aforesaid provisions of the Act deserves to be quashed and set aside. He also prayed that he be reinstated with full back wages alongwith consequential benefits. 4. Petitioner-Company by of reply refuted aforesaid claim put forth by the workman and claimed that there was a settlement between the Worker Union and the petitioner under S.12(3) and S.18(1) of the Act and at that point of time, no objection ever came to be raised by any of the workers including the workman herein. Petitioner further claimed that the petitioner was declared a 'sick company' by the Board for Industrial and Financial Reconstruction (BIFR) and a Scheme for rehabilitation was framed. Petitioner further claimed that the petitioner was declared a 'sick company' by the Board for Industrial and Financial Reconstruction (BIFR) and a Scheme for rehabilitation was framed. Pursuant to aforesaid Scheme, petitioner and workers including the workman herein, entered into an agreement and as per the same, services of 21 workers were dispensed with and they were given compensation. All other workers except the workman herein, accepted the compensation and left the Factory premises. Subsequently, workman raised industrial dispute before the competent Authority, who made reference to learned Tribunal below for adjudication. 5. In rejoinder to the reply filed by the petitioner, workman feigned ignorance with regard to settlement, if any, between the petitioner and the Worker Union. Learned Tribunal below, vide Award dated 29.8.2012, though returned finding that it cannot be held that the services of workman were terminated by the petitioner in violation of provisions of the Act, however, held him entitled to a lump sum compensation to the tune of Rs.2.00 Lakh only. In the aforesaid background, petitioner has approached this Court in the instant proceedings praying therein to set aside the aforesaid Award passed by learned Tribunal below being contradictory and beyond the terms of reference. 6. Having heard learned counsel for the parties and perused the material available on record, vis--vis reasoning assigned in the impugned award, this Court finds considerable force in the arguments of Mr. Mahajan, learned counsel for the petitioner that learned Tribunal below, while passing impugned award has exceeded the terms of reference, wherein it was only called upon to ascertain whether termination of the services of the workman on completion of 240 days of continuous service, is in violation of the provisions of Sections 25N, 25G and 25H of the Act ibid and, if it is so, what relief can be extended to the workman. Interestingly, in the case at hand, careful perusal of impugned Award clearly reveals that though learned Tribunal below, on the basis of evidence led on record by respective parties, be it ocular or documentary, arrived at a definite conclusion that the services of the workman were not retrenched in contravention of the provisions of the Act, rather all the workers, including the workman, were disengaged on account of winding up ordered by the Board for Industrial and Financial Reconstruction (BIFR), but despite that learned Tribunal below proceeded to grant a lump sum compensation to the tune of Rs.2.00 Lakh in favour of the workman, who miserably failed to prove that his termination was in violation of Ss.25N, 25G and 25H of the Act. 7. As per terms of reference, learned Tribunal below was called upon to determine as to whether services of the workman were retrenched /terminated in violation of aforesaid provisions of the Act ibid and if it was so, what benefit/relief could be extended to him. In view of the terms of reference, learned Tribunal below at the first instance was required to determine violation, if any, of aforesaid provisions of law and thereafter decide what relief, if any, could be granted in favour of workman. In the instant case, once learned Tribunal below had arrived at a definite conclusion that there is no violation of Ss. 25N, 25G and 25H of the Act ibid, there appears to be considerable force in the argument of Mr. Mahajan, that no consequential relief including compensation, if any, could be granted to the workman. 8. It has been repeatedly held by Hon'ble Apex Court as well as this Court that labour court, while adjudicating dispute if any, cannot go beyond the terms of reference. In this regard, reliance is placed upon a judgment rendered by Hon'ble Apex Court in Oshiar Prasad v. Sudamdih Coal Washery, (2015) 4 SCC 71 , wherein Hon'ble Apex Court has held as under: "20. The same issue came up for consideration before three Judge Bench in a case reported in Pottery Mazdoor Panchayat vs. Perfect Pottery Co. Ltd. and Another, (1979) 3 SCC 762 . Justice Y.V. Chandrachud - the learned Chief Justice speaking for the Court laid down the following proposition of law: "10. The same issue came up for consideration before three Judge Bench in a case reported in Pottery Mazdoor Panchayat vs. Perfect Pottery Co. Ltd. and Another, (1979) 3 SCC 762 . Justice Y.V. Chandrachud - the learned Chief Justice speaking for the Court laid down the following proposition of law: "10. Two questions were argued before the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent's contention that the question of retrenchment compensation has to be decided under Section 33-C(2) of the Central Act. 11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references [pic]being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management." 21. The abovesaid principle of law has been consistently reiterated in M/s Firestone Tyre & Rubber Co. The abovesaid principle of law has been consistently reiterated in M/s Firestone Tyre & Rubber Co. of India (P) Ltd. vs. The Workmen Employed, represented by Firestone Tyre employees Union, (1981) AIR SC 1626, National Engineering Industries Ltd. vs. State of Rajasthan & Ors., (2000) 1 SCC 371 , Mukand Ltd. vs. Mukand Staff & Officers Association, (2004) 10 SCC 460 and State Bank of Bikaner & Jaipur vs. Om Prakash Sharma, (2006) 5 SCC 123 . 22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10of the Act only when "Industrial dispute exists" or "is apprehended between the parties". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference. 9. It further emerges from the impugned Award that settlement dated 10.4.2001, wherein a consolidated amount was offered to all the 21 workers including the present workman by the petitioner, weighed heavily with learned Tribunal below, while holding workman entitled to compensation to the tune of Rs.2.00 Lakh. But impugned Award itself reveals that learned Tribunal below proceeded to award compensation merely on the basis of suggestion put to the workman during cross-examination that he was offered compensation of Rs.1,51,372/- (Mark 'C'), but, I am afraid that such suggestions or admission thereafter, if any, by the workman during his cross-examination could be made basis by learned Tribunal below to award lump sum compensation, especially when termination of workman was not held in violation of provisions of Ss. 25N, 25G and 25H of the Act ibid. 10. In view of the detailed discussion made herein above, present petition succeeds, in consequence whereof, Award dated 29.8.2012, passed by the learned Presiding Judge, Industrial Tribunal-cum-Labour Court, Shimla (HP) in Ref. No. 361 of 2002, is set aside. All pending miscellaneous applications also stand disposed of.