ORDER : 1. Civil Misc. Restoration Application No. 128353 of 2010 supported by affidavit dated 25.4.2010 is taken up. 2. Heard Sri Rajendra Kumar Mishra, learned counsel for the petitioner. No one has appeared on behalf of the respondent No. 3 even in the revised call. 3. Cause shown in para 4 of the affidavit filed in support of the Restoration Application is found to be sufficient. 4. The restoration application is allowed. The order dated 15.4.2010 dismissing the writ petition in default is recalled. 5. The writ petition is restored to its original number. 6. The petitioner in the writ petition is seeking quashing of the award dated 25.7.1992 passed in Adjudication Case No. 26 of 1990. 7. Briefly stated, the facts of the case are that the respondent No. 3 workman raised an industrial dispute claiming that his services had been terminated with effect from 31.12.1978 and the same was illegal and was liable to be set aside. The State Government referred the dispute to the Labour Court which was registered as Adjudication Case No. 26 of 1990. The case of the respondent No. 3 workman was that he had been engaged as ad hoc-clerk in Halrith Section where consumer billing is done under the petitioner from 17.1.1978 to 30.12.1978 and during this period he had completed 346 days of continuous service and therefore, his services could not have been terminated without complying the provisions of Section 6-N of the U.P. Industrial Disputes Act, 1947 read with Rule 42 of the Rules, 1947. 8. Learned counsel for the petitioner has referred to the finding recorded by the Labour Court wherein it has been held that the respondent workman has failed to prove that he had completed 240 days of continuous service but since some other workmen namely, Smt. Shakuntala Kureel and Smt. Mumtaz Bano were reemployed by the Management, therefore, the petitioner employer has acted in violation of the provisions of Section 6Q of the Act, 1947 read with Rule 43 thereof. The Labour Court further held that though the respondent workman is not entitled to any back wages but he is entitled for reemployment as given to Smt. Shakuntala Kureel and Smt. Mumtaz Bano. Learned counsel for the petitioner submitted that the Labour Court had travelled beyond the reference and therefore, the award itself is without jurisdiction. The Labour Court further held that though the respondent workman is not entitled to any back wages but he is entitled for reemployment as given to Smt. Shakuntala Kureel and Smt. Mumtaz Bano. Learned counsel for the petitioner submitted that the Labour Court had travelled beyond the reference and therefore, the award itself is without jurisdiction. He further submitted that the reference to the Labour Court was specifically as to whether the termination of service of the respondent workman vide order dated 31.12.1978 was valid or not and the question referred was not as to whether the respondent workman was entitled to re-employment under Section 6-Q of the Act, 1947. I have given my anxious consideration to the submissions of the learned counsel for the petitioner and perused the record. 9. Undisputed finding recorded by the Labour Court in the award is that the respondent workman has failed to establish that he had worked 240 days of continuous service in a calender year. Thus, the question of violation of the provisions of Section 6N of the Act, 1947 pertaining to retrenchment compensation or giving notice of retrenchment or wages in lieu of notice of retrenchment did not arise. Similarly, Section 6-Q of the Act, 1947 speaks of re-employment of "retrenched" workmen and states that whenever the employer proposes to take into his employ any person he shall give an opportunity to the "retrenched" workmen to offer themselves for such reemployment. Section 6-Q reads as under: "6-Q. Re-employment of retrenched workmen - Where any workmen are retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity to the retrenched workmen to offer themselves for reemployment, and the retrenched workmen who offer themselves for re-employment shall have preference over other persons." 10. From a reading of the Section, it is quite clear that the workman shall be entitled for reemployment only if he is a retrenched employee meaning thereby he had worked 240 days of continuous service and thereafter retrenched or entitled to be retrenched as per the provisions of Section 6-N of the Act, 1947. 11. From a reading of the Section, it is quite clear that the workman shall be entitled for reemployment only if he is a retrenched employee meaning thereby he had worked 240 days of continuous service and thereafter retrenched or entitled to be retrenched as per the provisions of Section 6-N of the Act, 1947. 11. In the present case, what is noticed is that the respondent workman admittedly had never completed 240 days of continuous service in a calender year and therefore, the question of his retrenchment under Section 6-N of the Act, 1947 did not arise and consequently, Section 6-Q also would not apply and therefore, the finding of the Labour Court that merely because Smt. Shakuntala Kureel and Smt. Mumtaz Bano had been given re-employment and therefore, the respondent workman was also entitled for being given re-employment is absolutely illegal. 12. There is another aspect of the matter. The reference made by the State Government to the Labour Court was only confined to the validity of the termination order of the respondent workman dated 31.12.1978. The reference was not with regard to reemployment of the respondent workman. Therefore, by ordering re-employment of the respondent workman, the Labour Court has travelled beyond the ambit of reference. The law in this regard is well settled. 13. The Supreme Court in the case of Mukund Ltd. vs. Mukund Staff and Officers' Association, AIR 2004 SC 3905 : (2004) 10 SCC 460 : LNIND 2004 SC 307 in paragraph 24 and 36 held as under:- "24. We have already referred to the order of Reference dated 17.2.1993 in paragraph supra. The dispute referred to by the order of Reference is only in respect of workmen employed by the appellant-Company. It is, therefore, clear that the Tribunal, being a creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference. In the facts and circumstance of the present case, the Tribunal could not have adjudicated the issues of the salaries of the employees who are not workmen under the Act nor could it have covered such employees by its award. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the non-workmen. 36. Even assuming, without admitting, that the Reference covered the non-workmen, the Tribunal, acting within its jurisdiction under the Act, could not have adjudicated the dispute insofar as it related to the non-workmen. 36. We, therefore, hold that the reference is limited to the dispute between the Company and the Workmen employed by them and that the Tribunal, being the creature of the Reference, cannot adjudicate matters not within the purview of the dispute actually referred to it by the order of Reference." 14. In Telco Convoy Drivers Mazdoor Sangh and Another vs. State of Bihar and Others, AIR 1989 SC 1565 : (1989) 3 SCC 271 : LNIND 1989 SC 268, the Supreme Court in paragraph 11 and 12 has held as under:- "11. It is true that in considering the question of making a reference under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended" as urged by Mr. Shanti Bhusan. The formation of opinion as to whether an industrial dispute "exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits. In the instant case, as already stated, the dispute is as to whether the convoy drivers are employees or workmen of TELCO, that is to say, whether there is relationship of employer and employees between TELCO and the convoy drivers. In considering the question whether a refer, should be made or not, the Deputy Labour Commissioner and/or the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus, the dispute has been decided by the Government which is undoubtedly, not permissible. 12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are work-men, there cannot be any existence of industrial dispute within the meaning of the term as defined in section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in section 2(k) of the Act." 15. In Tata Iron and Steel Co. In Tata Iron and Steel Co. Ltd. vs. State of Jharkhand and Others, (2014) 1 SCC 536 : LNIND 2013 SC 822 : 2013 (4) LLJ 431 the Supreme Court in paragraphs 6, 9, 10, 11, 12 and 13 has held as under:- "6. Notices were issued to the appellant to participate in the Conciliation Proceedings. The appellant appeared and took the plea that on and from 1.11.1999, the cement division was sold to M/s. Lafarge and these workmen had become the employees of M/s. Lafarge. It was also stated that fresh appointment letters issued by M/s. Lafarge and they ceased to be the employees of the appellant. Since no amicable settlement could take place and conciliation proceedings resulted in failure. The failure report was sent by the Labour Department to the Government of Jharkhand which resulted in two reference orders, thereby referring the disputes between the parties to the Labour Court, Jamshedpur, for adjudication. The dispute was referred under Section 10(1) of the Industrial Dispute Act, 1947 with following terms and reference. "Whether not to take back Shri K. Chandrashekhar Rao and 73 other workmen (list enclosed) of M/s. TISCO Limited, Jamshedpur in service by their own TISCO Management after their transfer to M/s. Lafarge India Limited, is justified? If not what relief they are entitled to?" Other reference was also worded identically. 10. At the outset, we would like to observe that the High Court is right in holding that the Industrial Dispute has arisen between the parties in as much as the contention of the workers is that they are entitled to serve the appellant as they continued to be the workers of the appellant and were wrongly "transferred" to M/s. Lafarge. On the other hand, the appellant contends that with the hiving off the cement division and transferring the same to M/s. Lafarge along with the workers who gave their consent to become the employees of the transferee company, the relationship of employers and employees ceased to exist and, therefore, the workmen have no right to come back to the appellant. This obviously is the "dispute" within the meaning of Section 2(k) of the Industrial Disputes Act. This obviously is the "dispute" within the meaning of Section 2(k) of the Industrial Disputes Act. Section 2(k) of the Industrial Disputes Act which defines Industrial Dispute reads as under: "2(h) "industrial dispute" means any dispute or difference between employers and employers, between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person." 11. No doubt, as per the aforesaid provision, industrial dispute has to be between the employer and its workmen. Here, the appellant is denying the respondents to be its workmen. On the other hand, respondents are asserting that they continue to be the employees of the appellant company. This itself would be a "dispute" which has to be determined by means of adjudication. Once these respective contentions were raised before the Labour Department, it was not within the powers of the Labour Department/ appropriate Government decide this dispute and assume the adjudicatory role as its role is confined to discharge administrative function of referring the matter to the Labour Court/ Industrial Tribunal. Therefore, this facet of dispute also needs to be adjudicated upon by the Labour Court. It cannot, therefore, be said that no dispute exists between the parties. Of course, in a dispute like this, M/s. Lafarge also becomes a necessary party. 12. Having said so, we are of the opinion that the terms of reference are not appropriately worded in as much as these terms of reference do not reflect the real dispute between the parties. The reference presupposes that the respondents workmen are the employees of the appellant. The reference also proceeds on the foundation that their services have been "transferred" to M/s. Lafarge. On these suppositions the limited scope of adjudication is confined to decide as to whether appellant is under an obligation to take back these workmen in service. Obviously, it is not the reflective of the real dispute between the parties. It not only depicts the version of the respondents workmen, but in fact accepts the same viz. they are the employees of the appellant and mandates the Labour Court/ Industrial Tribunal to only decide as to whether the appellant is required to take them back in its fold. It not only depicts the version of the respondents workmen, but in fact accepts the same viz. they are the employees of the appellant and mandates the Labour Court/ Industrial Tribunal to only decide as to whether the appellant is required to take them back in its fold. On the contrary, as pointed out above, the case set up by the appellant is that it was not the case of transfer of the workmen to M/s. Lafarge but their services were taken over by M/s. Lafarge which is a different company/entity altogether. As per the appellant they were issued fresh appointment letters by the new employer and the relationship of employer-employee between the appellant and the workmen stood snapped. This version of the appellant goes to the root of the matter. Not only it is not included in the reference, the appellant's right to put it as its defence, as a demurrer, is altogether shut and taken away, in the manner the references are worded. 13. We would hasten to add that, though the jurisdiction of the Tribunal is confined to the terms of reference, but at the same time it is empowered to go into the incidental issues. Had the reference been appropriately worded, as discussed later in this judgment, probably it was still open to the appellant to contend and prove that the Respondent workmen ceased to be their employees. However, the reference in the present form does not leave that scope for the appellant at all." 16. The Delhi High Court while deciding Eagle Fashions vs. Secretary (Labour) and Others Civil Writ No. 1109 of 1995, has held that where the factum of employment and termination itself were in dispute, the reference could not have been framed presuming employment and its termination. Relevant paragraphs of the judgment are extracted below:- "1. This is a petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing the order of reference dated August 11, 1995, Annexure P-1, whereby the following dispute has been referred to the Labour Court by Respondent No. 1 in exercise of the powers conferred by Sections 10(1)(c) and 12(5) of the Industrial Disputes Act, 1947. "Whether the services of S/Shri Ch. Brijveer Singh, Pradeep Kumar, K.R. Sagar, Sudhir Kumar, Subhash Dubey, Mohd. "Whether the services of S/Shri Ch. Brijveer Singh, Pradeep Kumar, K.R. Sagar, Sudhir Kumar, Subhash Dubey, Mohd. Akbar and Vyas Gupta have been terminated illegally and/or unjustifiably by the Management and if so, to what relief are they entitled and what directions are necessary in this respect?" 4. When the factum of employment and termination itself were in dispute, the terms of reference could not have been so framed as to presume the employment and its termination and confining the reference merely to adjudication of illegality or unjustness thereof. We are of the opinion that the order of reference has been drawn up without application of mind and hence is vitiated." 17. In Shyam Sunder Aggarwal vs. Globe Detective Agency (P.) Ltd. and Others, 2007 (113) FLR 402 : 2007 (3) LLJ 52 , the petitioner had been transferred from Delhi to Vishakhapatnam office. When he did not join at Vishakhapatnam a domestic enquiry was held which resulted in termination of his services. The Labour court framed two preliminary issues:- 1. Whether claimant Shyam Sunder is a workman? If so, its effect? 2. Whether, the domestic enquiry conducted by the management is illegal unfair and against the principles of natural justice? The Delhi High Court held as under:- "6. The petitioner has failed to show in this petition as to what prejudice was caused to the petitioner and what documents were not supplied to him. Mere bald allegations of non-supplying of documents without disclosing the nature of the documents and the prejudice caused to the petitioner, does not vitiate an enquiry. Neither non-supply of inquiry report vitiates the inquiry unless the petitioner shows that some prejudice was caused to him. It is admitted case of the petitioner that he refused to join duty at his new place of transfer and transferred. So much so that the repeated visits of the petitioner at New Delhi Office irked the respondent to an extent that the respondent had to issue a caution to the petitioner that in case he again came to the New Delhi office, it shall be construed as a trespass. Moreover, the petitioner did not challenge the transfer orders alleging that the transfer orders were mala fide or he was transferred because he had become Secretary of the Union. Moreover, the petitioner did not challenge the transfer orders alleging that the transfer orders were mala fide or he was transferred because he had become Secretary of the Union. If he was aggrieved by the transfer orders issued in May, 1987, he should have raised the dispute about unfair labour practices or about the illegality of transfer at that time. He raised no dispute about the illegality of transfer order or about the unfair labour practices. He was stopped from raising these issues in the reference since these were beyond the scope of reference." 18. A similar view has been taken by a Division Bench by the Bombay High Court while deciding Writ Petition No. 142-B of 1980, Sitaram Vishnu Shirodkar vs. Administrator, Government of Goa and Others. Paragraph 8 of the said judgment is extracted below:- "8. We are in respectful agreement with the above observations of the Full Bench of the Delhi High Court. In the instant case also the real dispute was whether the services of the respondent No. 4 were terminated or he had voluntarily abandoned the services and the reference that was made to this effect. "Whether the action of the Management of M/s. Hotel Cafe Real, Panaji in terminating the services of Shri. Shanu Mango Kunkolienkar, with effect from 1st March, 1978 is legal and justified. If the answer be in the negative, to what relief, if any, is the aforementioned workman entitled to?" The Tribunal could not travel beyond the reference and decide the question whether the respondent No. 4 had abandoned his services. That the petitioner had terminated the services of the respondent No. 4 was an act fastened on the petitioner by this reference and the only question left open for decision was whether the termination was legal and proper. In this view of the matter in our opinion, the reference itself was bad and has to be quashed. Shri Joshi raised one more submission that the establishment of the petitioner was registered under the Shops and Establishments Act which was the complete Code itself and the respondent No. 4 should have taken recourse to the provisions of the Act. In this view of the matter in our opinion, the reference itself was bad and has to be quashed. Shri Joshi raised one more submission that the establishment of the petitioner was registered under the Shops and Establishments Act which was the complete Code itself and the respondent No. 4 should have taken recourse to the provisions of the Act. Though S. 39 of the Act provides that no employer shall without a reasonable cause and except for misconduct terminate the service of an employee who has been in his employment continuously for a period of not less than six months without giving such employee at least one month's notice in writing, no provision has been pointed out to us for seeking necessary relief. There is a provision under S. 52 of the Act for punishing the erring employer for breach of the provisions of S. 39. However, it is not necessary for us to decide the question whether the respondent No. 4 could not approach the authority under the Shops and Establishments Act. As observed, the reference made by the Government of Goa, Daman and Diu, in our opinion, is bad and is hereby quashed. It is open to the Government to consider whether a fresh reference should be made or not." 19. Therefore, on the facts of the case and the law laid down by the Supreme Court in Mukund Ltd. vs. Mukund Staff and Officers' Association (supra), Telco Convoy Drivers Mazdoor Sangh and Another vs. State of Bihar and Others (supra) and Tata Iron and Steel Co. Ltd. vs. State of Jharkhand and Others (supra), the award of the Labour Court dated 25.7.1992 passed in Adjudication Case No. 26 of 1990 is wholly illegal and without jurisdiction and is accordingly set aside. 20. The writ petition is allowed.