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SUPREME COURT OF INDIA
V.R. KRISHNA IYER, R.S. SARKARIA AND JASWANT SINGH, JJ.
M/s. Cox and Kings (Agents) Ltd., Appellant
Versus
Their Workmen and others, Respondents.
Civil Appeal No. 376 of 1976,
D/- 18-3-1977.
Advocates Appeared
Mr. G. B. Pai. Sr. Adv., (M/s. O. C. Mathur and D. N. Mishra Advs. with him), for Appellant; Mr. M. K. Ramamurthi. Sr. Adv., (M/s. S. C. Jain and Madan Mohan, Advs. with him), for Respondents.
Industrial Disputes Act, 1947 - Section,19 - Court had no jurisdiction - Served on employment - Statement in augmented by an application Management raised preliminary objection that since no demand notice had been served on Management no industrial dispute had legally come into existence and as such Reference was invalid and Labor Court had no jurisdiction to adjudicate it - By an order dated September labor Court accepted objection holding that no industrial dispute came into existence before this reference as workmen have failed to establish serving of demand on management prior to this reference - Effect of this finding is that reference could not have been made for adjudication and same is accordingly invalid and hence question of deciding issue as in reference or other issues does not arise as industrial dispute reference did not come into existence in accordance with law before this reference - This award is made accordingly – Held, Question of onus loses its importance when both parties adduce whatever evidence they had to produce - In instant case both parties led their evidence and closed their respective cases - Subsequently at late stage Management made an application for adducing additional evidence - Labor Court declined that application - High Court found and court think rightly no good reason to interfere with discretion of Labor Court - It may be remembered further that this appeal arises out of petition Art - Constitution and in exercise of that special jurisdiction High Court does not reopen finding of fact based on legal evidence - Findings of Labor Court to effect that after their dismissal Ram Gupta was unable to find any alternative employment elsewhere while was able to find only intermittent employment elsewhere were based on evidence produced by parties - High Court was therefore right in not interfering with those findings of fact - Lastly it was urged by employers had lost confidence in employee and therefore compensation without reinstatement would have been adequate relief - It is submitted that business of employers is that of Travel Agents and such sensitive business can be successfully carried on only with aid of employees whose fidelity and integrity is beyond doubt - It is stressed that employees of appellants have to handle daily lot of cash received from their clients in discharge of their duties - It is pointed out that charge against was one of misappropriation of such funds and this charge was established in domestic enquiry - Labor Court proceeds argument did not displace that finding of domestic Tribunal but ignored it on ground that charge was stale and had been condoned - In short argument is that employers had lost confidence in this employee who could no longer be entrusted to perform sensitive jobs on behalf of Management without detriment to its business - Court are unable to accept this contention - Firstly this point was not argued before High Court – Secondly observations of Labor Court read as whole show that in its opinion charge of misappropriation of funds had not been proved against - This is what Labor Court said on point - Appeal dismissed
Judgment
SARKARIA, J.- The principal question that arises in this appeal by special leave is: Whether an order of the Labour Court to the effect, that since no demand of the workmen had been served on the employer, no industrial dispute had come into existence in accordance with law, and as such the Reference was invalid and the Court had no jurisdiction to adjudicate the matter referred to it by the Government, is an "award" for the purposes of S. 19 of the Industrial Disputes Act, 1947 (for short. called the Act)?
2. Cox & Kings (agents) Ltd. (for short, the Management) dismissed from service three of their workmen after a domestic enquiry conducted against them on certain charges.
3. In May 1967, the Lt. Governor of Delhi made a Reference under S. 10 read with S. 12 (5) of the Act to the Labour Court, Delhi, to determine:
"Whether the terminations of services of S/Shri H. B. Rawat, Bidhi Cahand and Ram Sarup Gupta were unlawful and unjustified, and if so, to what relief are these workmen entitled."
4. By an amendment of their written statement in February, 1969, augmented by an application dated 17-3-1971, the Management raised a preliminary objection that since no demand notice had been served on the Management, no industrial dispute had legally come into existence, and as such the Reference was invalid and the Labour Court had no jurisdiction to adjudicate it. By an order, dated September 27, 1972, the labor Court accepted the objection, holding:
"...........that no industrial dispute came into existence before this reference as the workmen have failed to establish serving of demand on the management prior to this reference. The effect of this finding is that the reference could not have been made for adjudication and the same is accordingly invalid and hence the question of deciding the issue as in the reference or other issues does not arise as the industrial dispute under reference did not come into existence in accordance with law before this reference. This award is made accordingly."
5. Thereafter, the workmen on 25-10-1972, raised a dispute by serving demand notices on the Management. By his order dated 2-5-1973, the Lt. Governor, Delhi, again made a Reference to the Labour Court, under the Act for adjudication of the same matter relating to the termination of the services of the aforesaid workmen.
6. The Management raised, inter alia a preliminary objection that a second Reference within one year of the first award dated September 27, 1972, was not competent in view of what is contained in S. 19 of the Act.
7. By an order dated 2-5-1973, the Labour Court dismissed the preliminary objections. After recording the evidence produced by the parties, the Court held on merits, that the termination of the services of 3 workmen was illegal and unjustified. The Court further found that Bidhi Chand workman had become gainfully employed elsewhere as a driver with better emoluments and it was therefore sufficient, to award him compensation, without any relief of reinstatement, at the rate of 50% of his wages for three years from 1966 to 1969 to the date of his getting employment elsewhere. It further found that Ram Sarup Gupta had remained unemployed after his dismissal in 1966. It therefore directed his reinstatement with full back wages and continuity of service. As regards H. B. Rawat, the Court found that he could not have remained unemployed throughout but was doing some work or the other for his living, may be with occasional spells. The Court therefore held that Rawat was entitled to reinstatement and continuity of service with 50% back wages till the award came into operation and he got his reinstatement. This award was made by the Labour Court on 1-5-1975.
8. The Management impugned this award by filing a writ petition under Art. 226 of the Constitution in the High Court of Delhi. Only three contentions were canvassed by the Management at the preliminary hearing before the High Court: (i) That the determination, dated 27-9-1972
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