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2020 DIGILAW 613 (HP)

General Manager v. Tej Singh

2020-09-17

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Instant petition filed under Articles 226 and 227 of the Constitution of India, lays challenge to award dated 5.4.2016, passed by the Central Government Industrial Tribunal cum Labour Court-II Chandigarh (in short "the Industrial Tribunal") in case No. ID No. 242/2012 (Tej Singh v. The General Manager, NHPC and Anr.), whereby the Tribunal below while answering the reference in favour of respondent-workman held the petitioner and respondent No. 2 liable jointly and severely to pay sum of Rs. 3,00,000/- as compensation to the workman. 2. For having bird's eye view, certain undisputed facts, which may be relevant for adjudication of the petition at hand are that petitioner-General Manager, NHPC, awarded a contract for construction of "Civil and Hydro-mechanical work of Head Race Tunnel and Associate Works" of Pabarti HE Project to respondent No.2. Respondent-workman namely Tej Singh was engaged by respondent No.2 as driver w.e.f. 5.3.2003 on the consolidated salary of Rs. 16,000/- per month, however since services of respondent No.1 came to be retrenched on 18.10.2010, without there being any notice or payment of compensation in terms of provisions contained under the Industrial Disputes Act (herein after referred to as "the Act"), he raised industrial dispute. Since conciliation failed inter-se respondents No. 1 and 2, Industrial Tribunal in exercise of powers conferred by Clause (d) of Sub-Section (1) and Sub-Section 2 (A) of Section 10 of the Act, made following reference to Industrial Tribunal: "Whether the demand of Sh. Tej Singh S/o Sh. Maya Ram, Vill. Kuther, PO Chailchowk, Tehsil Chachiot, Distt. Mandi (HP) against the management of Himachal Pradesh Joint Venture Parbati HE Project, Thela Distt. Kullu (HP) in retrenching the services w.e.f. 18/10/2010 is just valid and legal? If so, what relief to the workman is entitled for and what directions are necessary in the matter?" 3. Precisely, respondent-workman claimed before the Tribunal below that respondent No.2, who was awarded work of construction of "Civil and Hydro-mechanical work of Head Race Tunnel and Associate Works" by the petitioner NHPC, appointed him as driver w.e.f. 5.3.2002 and in this capacity, he worked continuously till 18.10.2020, when, his services have been illegally retrenched by respondent No.2. Respondent-workman further claimed that since his services came to be retrenched without there being any notice or payment of compensation as provided under the various provisions of the Act, he deserves to be reinstated. Respondent-workman further claimed that since his services came to be retrenched without there being any notice or payment of compensation as provided under the various provisions of the Act, he deserves to be reinstated. Respondent-workman further claimed that signatures of some of the employees were taken on blank paper and the fact of "lay off" was not brought to the notice of workman as well as the petitioner. Respondent-workman further alleged that respondent No.2 engaged numerous workers from other contracts for the execution of the work at site after his retrenchment and as such, he be ordered to be reinstated in service. 4. Aforesaid claim of the respondent-workman came to be refuted by the present petitioner, who was impleaded as one of the respondent, in the proceedings before the Tribunal on the ground that it has no role in engagement as well as disengagement of the workman as driver because respondent workman as per his own claim was appointed as driver by respondent No.2, to whom it had awarded contract for construction of Civil and Hydro-mechanical work of Head Race Tunnel and Associate Works. Besides above, the petitioner pleaded before the Industrial Tribunal that Himachal Joint Venture workers' union and management of respondent No.2 entered into negotiations and settled the matter amicably on 14.7.2011, wherein respondent No.2 agreed to make payments to the workers and last day of work was considered as 30.4.2011. 5. Respondent No.2 by way of separate reply though admitted that workman was engaged as driver at Adit-1 site and work was completed in September, 2020, but denied that services of the respondent workman were retrenched in violation of provisions contained under the Act. Respondent No.2 claimed that after completion of work in September, 2020, settlement was effected between workers union and its management, as a consequence of which, 192 workers out of total 196, were paid retrenchment benefits except the present workman. Respondent No.2 claimed that services of the workman were retrenched in view of the settlement dated 26.6.2011. 6. On the basis of aforesaid pleadings adduced on record as well as evidence led on record by the respective parties, Tribunal below allowed the reference in favour of the respondent workman and held the petitioner as well as respondent No.2 liable jointly and severely to pay compensation to the tune of Rs. 3.00 lac to the respondent workman. 6. On the basis of aforesaid pleadings adduced on record as well as evidence led on record by the respective parties, Tribunal below allowed the reference in favour of the respondent workman and held the petitioner as well as respondent No.2 liable jointly and severely to pay compensation to the tune of Rs. 3.00 lac to the respondent workman. While holding the claimant entitled for compensation to the tune of Rs. 3.00 lac, Industrial Tribunal ordered that if respondent No.1 i.e. present petitioner pays the amount, he would be at liberty to recover the same from respondent No.2 In the aforesaid background, the petitioner i.e. respondent No.1 before the Industrial Tribunal has approached this Court in the instant proceedings, praying therein to set-aside the impugned award. 7. Having heard learned counsel for the parties and perused material available on record, this Court finds substantial force in the submission made by Mr. C.N. Singh, learned counsel for the petitioner that once it stood proved that petitioner had no role, whatsoever, in the engagement or disengagement of respondent workman, Industrial Tribunal ought not have held the petitioner liable jointly and severely with respondent No.2 to pay the compensation. Otherwise also, it stands duly admitted by respondent No.2 that respondent workman was appointed by "Himachal Joint Venture" and services of the respondent workman came to be disengaged on account of settlement dated 26.6.2011 arrived inter-se respondent No.2 and its workers' union. Respondent No.2 specifically admitted before the Industrial Tribunal that in terms of settlement arrived inter-se management and its workers, 192 out of 196 workers were paid retrenchment benefits save and except the present workman, meaning thereby compensation if any, on account of retrenchment was also to be paid in case of the respondent workman by respondent No.2 not by the petitioner. Neither respondent workman nor respondent No.2 set up a case before the Industrial Tribunal that petitioner being principal employer is liable to pay the compensation. 8. Otherwise also, once it is admitted case of the parties that respondent No.2 is an independent identity having no connection with petitioner No.2, it is not understood that how Tribunal below could saddle the petitioner with liability to pay compensation jointly and severely with respondent No.2 being principal employer. 8. Otherwise also, once it is admitted case of the parties that respondent No.2 is an independent identity having no connection with petitioner No.2, it is not understood that how Tribunal below could saddle the petitioner with liability to pay compensation jointly and severely with respondent No.2 being principal employer. As per own case set up by the respondent workman, he was appointed as driver by respondent No.2, to whom construction work was awarded by the petitioner. There is no material worth credence available on record suggestive of the fact that petitioner had any administrative control over the management of respondent No.2. Evidence led on record by the respective parties nowhere indicates that workman was able to point out that he was being paid salary or his attendance in office was being marked by the office of the petitioner and as such, Industrial Tribunal has erred while holding the petitioner liable to pay compensation being principal employer. Even otherwise also, Industrial Tribunal has ordered that if respondent No.1 pays the amount, he is at liberty to recover the same from respondent No.2, meaning thereby, Industrial Tribunal while answering reference referred to it by the Central Government, was not sure about the extent of liability of the petitioner, who otherwise by no stretch of imagination could have been held liable to pay the compensation being principal employer in the given facts and circumstances of the case. 9. Leaving everything aside, this Court having carefully perused terms of reference, which has been otherwise reproduced herein above, finds that Industrial Tribunal has exceeded its jurisdiction because in terms of terms of reference, Industrial Tribunal was to find out whether demand of respondent workman against the management of respondent No.2 in retrenching the services w.e.f. 18.10.2010 is just, valid and legal and as such, it could not have gone into the question of extent of liability, if any, of the petitioner, who has otherwise no role in appointing and disengaging the service of the respondent-workman. Tribunal below in terms of terms of reference ought to have confined itself only to ascertain whether management of respondent No.2 legally retrenched the services of the workman or not and if yes, what necessary direction can be issued in the case at hand. Tribunal below in terms of terms of reference ought to have confined itself only to ascertain whether management of respondent No.2 legally retrenched the services of the workman or not and if yes, what necessary direction can be issued in the case at hand. Once Industrial Tribunal on the basis of material available on record had arrived at a conclusion that respondent-workman was appointed by respondent No.2 and his services were terminated in violation of the provisions contained in the Act and he was not paid compensation in terms of settlement arrived inter-se parties, it ought to have issued direction to respondent No.2 to pay the compensation in favour of the respondent workman, but definitely, it could not have gone into the question of liability, if any, of the petitioner. 10. It is well settled that labour Court cannot travel beyond the terms of reference. Hon'ble Apex Court in case titled Oshiar Prasad and Ors v. Employers in Relation to Management of Sudamdih Coal Washery of M/s Bharat coking coal limited, Dhanbad, Jharkhand, (2015) 4 SCC 71 , has held that Tribunal while answering reference has to confine its inquiry to the question referred and has no jurisdiction to travel beyond the question or/and the terms of the reference. Relevent paras of the aforesaid judgment are reproduced herein below:- 18. One of the questions which fell for consideration by this Court in Delhi Cloth and General Mills Co. Ltd. vs. The Workmen and Others, (1967) AIR SC 469 was that what are the powers of the appropriate Government while making a reference and the scope and jurisdiction of Industrial Tribunal under Section 10 of the Act. 19. Justice Mitter, speaking for the Bench, held as under: "(8) ......Under S. 10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring "the dispute or any matter appearing to be connected with, or relevant to the dispute,.....to a Tribunal for adjudication" under s. 10(4) "10. (4) 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." (9) From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary : "happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated :" "Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct to it....." 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. 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. 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. of India (P) Ltd. vs. The Workmen Empoloyed, 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 10 of the Act only when "Industrial dispute exists" or "is apprehended between the parties". 22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of 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. 23. Coming now to the facts of this case, it is an admitted case that the services of the appellants and those at whose instance the reference was made were terminated long back prior to making of the reference. These workers were, therefore, not in the services of either Contractor or/and BCCL on the date of making the reference in question. Therefore, there was no industrial dispute that "existed" or "apprehended" in relation to appellants' absorption in the services of the BCCL on the date of making the reference. 24. Indeed a dispute regarding the appellants' absorption was capable of being referred to in reference for adjudication, had the appellants been in the services of Contractor or/and BCCL. But as said above, since the appellants' services were discontinued or/and retrenched (whether rightly or wrongly) long back, the question of their absorption or regularization in the services of BCCL, as claimed by them, did not arise and nor this issue could have been gone into on its merits for the reason that it was not legally possible to give any direction to absorb/regularize the appellants so long as they were not in the employment. 25. It is a settled principle of law that absorption and regularization in the service can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination. 26. 26. In our considered opinion, the only industrial dispute, which existed for being referred to the Industrial Tribunal for adjudication was in relation to termination of appellants' employment and - whether it was legal or not? It is an admitted fact that it was not referred to the Tribunal and, therefore, it attained finality against the appellants. 27. In our considered opinion, therefore, the reference, even if made to examine the issue of absorption of the appellants in the services of BCCL, the same was misconceived." Also see judgment dated 20.5.2009 passed by this Court in CWP No. 9659 of 2011 11. Consequently, in view of the above, present petition is allowed and impugned award dated 5.4.2016 (Annexure P-5) is quashed and set-aside in as much as it has held the present petitioner liable jointly and severely. However, having taken note of the fact that workman despite there being settlement arrived inter-se management of respondent No.2 and workers' union has been not paid compensation like other similarly situate persons, this Court deems it fit to order that in case some amount is payable by the petitioner to respondent No.2, same may be paid after deducting the aforesaid amount of compensation so that workman who has been otherwise running from pillar to post for getting his dues since 2010, does not suffer indefinitely, for getting his admissible dues. Needless to say, amount, if any, deducted by the petitioner from bills of respondent No.2 shall be paid to the respondent workman directly but before complying with aforesaid direction petitioner may verify whether respondent No.2 has laid challenge, if any, to award impugned in the proceedings independently or not. In view of the above, present petition is disposed of alongwith pending applications, if any.