At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE VIKRAMAJIT SEN
For the Appearing Parties: H.K. Chaturvedi, Rahul Chaudhary, Advocates.
VIKRAMAJIT SEN, J.
(1) THE case of the Petitioner is that Respondent No. 3 had been engaged by him on 1/12/1973 and Respondent No. 4/11/1986, as piece rate workers. On 7/9/1987 Respondent No. 3 collected a sum of Rs. 650. 00 as full and final payment of his dues and Respondent No. 4 similarly collected a 'sum of Rs. 990. 00 as full and final payment of his dues in the same month, on 24. 9. 1987. A few days thereafter statements of Claims appear to have been filed by these Respondents and on the failure of Conciliation Proceedings, the following dispute was referred for adjudication before the Labour Court vide order No.- F. 24 (4109)87-Lab/39823-28 dated 16/12/1987:
"whether the services of S/shri Sunder Lal, Sri Ram and Bali Ram have been terminated illegally and/or unjustifiably and if so what relief are they entitled and what directions are necessary in this respect?"
(2) THE Petitioner was directed to pay a sum of Rs. 7,500. 00 towards costs to the workmen which appear not to have been paid till date. Furthermore, on a statement made by learned counsel for the Petitioner, to the effect that the Petitioner is ready to reinstate Respondents 3 and 4, notice of the Writ Petition was issued on 12. 5. 1999. Despite several opportunities granted, a Rejoinder has not been filed. In the meantime thirteen years have elapsed since the disputes were first raised by the workmen and sadly, Respondent No. 3 has passed away. His widow has been impleaded in his place.
(3) THE contention of the learned counsel for the Petitioner is that the Reference itself was improper and illegal. He has reiterated that the case of the Petitioner is that the Respondents were piece-rated workers and hence the question of their termination from services did not arise. Alternatively, it has been stated that the workmen had left their employment of their own volition. It-was reaffirmed before me that at no point of time were their services terminated.
(4) THE first question to be addressed in these proceedings, after the lapse of over one decade since the Order of Reference was made, is whether the legality of the reference can now be assailed. It is now beyond controversy that if the legality of the reference is to be challenged it must be immediately so done, by invocation of the powers vested in the High Court under Article 226 of the Constitution. In M/s. India tourism Development Corporation, Newdelhi Vs. Delhi Administration, Delhi and others, 1982 LAB. I. C. 1309, a situation similar in circumstances to the one at hand, had been occasioned. The rival contention was whether there was a lock-out or closure in the Establishment and the Government Reference assumed that there was a lock-out. This was immediately challenged by way of a writ petition under Article 226 of the Constitution. The contention of learned counsel for the Petitioner is that a preliminary objection to the effect that the services of the Respondents had not been terminated by the Management has been duly incorporated in the petition and this has not been answered by the Labour Court. In my view, on the strength of the decision of the Full Bench of this Court the appropriate remedy was to assail the reference immediately, by way of proceedings under Article 226 of the Constitution. This is because of the well settled proposition that the Labour Court cannot travel beyond the Reference. The parties could not be heard to argue before the Labour court on matters different to those contained in the Reference. The Decision of the supreme Court in The Delhi Cloth and General Mills Company Limitedvs. The workmen and others, AIR 1967 SC 469, leaves no controversy, and reads as follows:-
"16. . . . . . The third and the fourth terms of reference in the instant case are founded on the basis that there was a strike at the Delhi Cloth Mills and a sit-down strike at the Swatantra Bharat Mills and that there was a lock-out declared by the management of the Delhi Cloth Mills on 24/02/1966. . On the order of reference, it was not competent to the workmen to contend before the Tribunal that there Was no strike at all; equally, it was not open to the management to argue that there was no lock-out declared by it. The parties would be allowed by their respective statement of cases to place before the Tribunal such facts and contentions as would explain their conduct or their stand, but they could not be allowed to argue that the order of reference was wrongly worded and that the very basis of the order of reference was open to challenge. The cases discussed go to show that it is open to the parties to show that the dispute referred was not an industrial dispute at all and it is certainly open to them to bring out before the Tribunal the ramifications of the dispute. But they cannot be allowed to challenge the very basis of the issue set forth in the order of reference. "
(5) LEGISLATION meant to protect the labour, a party which is in a position of disadvantage when compared with the Management, cannot be permitted to be emasculated in the manner which the Petitioner has attempted to do. As has been stated above Respondent No. 3 has been working with the Petitioner since 1973 till his services were terminated. He has since died. After an inordinate delay of 13 years the Management is now attempting to rake up the legality of the Reference itself. This cannot be permitted in law or in equity.
(6) I have also perused the impugned Award. An unequivocal conclusion has been recorded to the effect that the workmen were not gainfully employed so as to defeat their rights under the Act. Furthermore, it has also been recorded in the Award that in the entire cross-exam
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ination of the witness late Sunder Lal, it had not even been suggested to him that he was working as a piece-rate worker on contract basis. There is a specific finding to the effect that the services of these Respondents have been terminated illegally and unjustifiably and that, they are, therefore, entitled for reinstatement with 50 per cent back wages. I see no reason whatsoever to interfere with these findings. Accordingly the petition is dismissed with costs of Rs. 5000. 00 to each of the Workmen i. e. Respondents 3 and 4 together with initial costs of Rs. 7,500. 00. The costs be paid within four weeks. The Award is upheld accordingly.